UNION OF INDIA & ORS. versus CDR. RAVINDRA V. DESAI on 18 April 2018

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[2018] 3 S.C.R. 806

SUPREME COURT REPORTS[2018] 3 S.C.R. 806

[2018] 3 S.C.R.

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UNION OF INDIA & ORS.

v.

CDR. RAVINDRA V. DESAI

(Criminal Appeal No. 579 of 2016)

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APRIL 18, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Armed Forces Tribunal Act, 2007: ss.30 and 31 – CourtMartial proceedings – Charges pertained to the alleged obscenecalls purportedly made by the respondent to the three ladies whoCwere wives of three officers of navy – Finding of guilt – Dismissalfrom service as well as forfeiture of 24 calender months of seniority– Armed Force Tribunal (AFT) maintained the conviction on certaincharges, however, found that punishment of dismissal from servicewas disproportionate to the nature of the charges – Aggrieved UnionDof India and the officer both appealed – Held: The prosecutionwas able to prove that mobile phone used for making offendingcalls was with the respondent during the relevant period – Further,the prosecution was able to prove that sexually explicit calls werereceived by the wives of the three officers – The charges were provedand the AFT also recorded the evidence and approved the finding –EAppeal before Supreme Court is limited on the quantum of sentencegiven by AFT – After setting aside the sentence of dismissal fromservice, the AFT has substituted the same by the sentence of loss ofseniority for 24 months – Further, while directing reinstatement inservice, the AFT also ordered that the respondent shall not beFentitled to pay and allowances for the period from the date when hewas dismissed from the service till the date of reinstatement, if it iswithin three months from the date of order of the AFT – Therespondent has not been reinstated in service as this court had,stayed the operation of the said order/direction – For all thesereasons, the order of the Tribunal is not interfered with on sentenceGinasmuch the effect is that not only seniority of the respondent isforfeited by 24 months, he is also deprived of his salary for morethan five years – Such a sentence would meet the ends of justiceand in these circumstances discretion exercised by the Tribunal isnot interfered with – Navy Act, 1957 – s.77(2) – Service law – ArmedHForces – Sentence.

Dismissing the appeal filed by the officer as well as theappeal filed by Union of India, the Court HELD: 1. The prosecution has been able to give satisfactoryproof to prove that when the offending calls in question weremade, the Cell Phone with Mobile No. [REDACTED] was with therespondent. [Para 14] [816-C]

2. In order to prove that sexually explicit calls were receivedby the wives of the three officers, the prosecution produced theseladies as PW-9, PW-12 and PW-18. They explained in detail havingreceived these calls and the offending language. To show thatthe calls were received from the said phone which belongs to therespondent, the prosecution had produced Call Data Record(CDR) of NOFRA land line numbers. The Officer-in-Charge ofNOFRA who appeared as PW-3 probe the said CDRs of NOFRATelephone Exchange showing that all the calls had originatedfrom Mobile No. [REDACTED]. He also produced certificateissued by him to the effect that the land line numbers of the threefemale victims were provided by the NOFRA TelephoneExchange. He specifically deposed that true and correct callrecords have been produced and there is no reason to disbelievethat. There was no discrepancies in the CDR produced byVodafone before the AFT. [Paras 15, 23] [816-D-E; 826-C]

3. Once the charges are proved in the court martialconducted by the authorities and the AFT also has given itsimprimatur to the same by putting its stamp of approval, that too,after recording the evidence, with detailed analyses thereof, it isnot the function of this Court to revisit the entire evidence tofind out as to whether the finding of the authorities below arecorrect or not. The instant proceedings are in the form of appealpreferred under Sections 30 and 31 of the Act and, therefore, theCourt is examining the matter as an appellate authority. However,the scope of such appeal is limited. A combined reading of Section30 and 31 clearly brings out that appeal to this Court has to be ona point of law on general public importance. The limited scope ofthis appeal is to be on the quantum of sentence given by theAFT. After setting aside the sentence of dismissal from service,the Tribunal has substituted the same by the sentence of loss of AB

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Aseniority for 24 months. Further, while directing reinstatementin service, the Tribunal has also ordered that the respondentshall not be entitled to pay and allowances for the period fromthe date when he was dismissed from the service till the date ofreinstatement, if it is within three months from the date of orderof the Tribunal. The respondent has not been reinstated inBservice as this court had, stayed the operation of the said order/direction. Thus, the respondent is still out of service and,therefore, lost his salary from the date of the order of the Tribunalwhich was passed on March 04, 2015. The respondent wasdismissed from service by orders dated January 26, 2013. For allCthese reasons, the order of the Tribunal is not interfered with onsentence inasmuch the effect is that not only seniority of therespondent is forfeited by 24 months, he is also deprived of hissalary for more than five years. Such a sentence would meet theends of justice and in these circumstances discretion exercised by the Tribunal did not need any interference. [Paras 25, 26, 29,D30] [826-E-F; 828-A, C-F]

Sonu alias Amar v. State of Haryana (2017) 8 SCC570 ; United Planters Association of Southern India v.K.G. Sangameswaran and Another (1997) 4 SCC 741 :[1997] 2 SCR 756 – referred to.EShafhi Mohammad. v. State of Himachal Pradesh(2018) 2 SCC 801 – held inapplicable.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 579 of 2016.G

From the Judgment and Order dated 04.03.2015 of the ArmedForces Tribunal, Regional Bench, Mumbai in Original ApplicationNo. 55 of 2014

WITH

HCriminal Appeal No. 574 of 2016.

Maninder Singh, ASG, Amit Sharma, R. Balasubramanian, PrabhasBajaj, Akshay Amritanshu, Mukesh Kumar Maroria, Dr. Harshvir PratapSharma, A. K. Sravastava, Paras Joshi, Pankaj Kumar, Advs. for theappearing parties.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. These two are cross appeals filed by boththe parties to the lis. On the one hand is the Union of India, along withthe Chief of Naval Staff as well as the Flag Officer, Commanding-in-Chief, Headquarters, Western Naval Command (hereinafter referred toas the ‘appellants’). On the other hand is Commander Ravindra V.Desai, a naval officer with Indian Navy (hereinafter referred to as the‘respondent’).

2. On certain allegations against the respondent, he was servedwith charge-sheet containing ten charges which led to the court martialproceedings against him. Court Martial returned the finding of ‘guilty’on all charges which led to imposition of sentence of dismissal from thenaval service as well as forfeiture of 24 calender months of seniority.After exhausting departmental remedies, the respondent challenged itsconviction before the Armed Forces Tribunal (for short, ‘AFT’). Findingcertain reasons stated at the appropriate stage, the AFT decided to itselfrecord the evidence on those charges by giving opportunities to both theparties. On the basis of evidence produced before the AFT, the AFT setaside the finding of ‘guilty’ in respect of three charges (8[th], 9[th] and 10[th]charges) on the ground of misjoinder of charges holding that it had noconnection with charges 1 to 7. However, in respect of charges 1 to 7,the AFT maintained that the appellant could successfully prove thesecharges by cogent evidence. The AFT, thereafter, proceeded to considerthe quantum of punishment and came to the conclusion that thepunishment of a ‘dismissal from service’ is disproportionate to the natureof charges. It also observed that when the respondent had been awardedthe punishment of ‘dismissal from service’, second punishment, namely,forfeiture of seniority for 24 months did not make any sense. On thesegrounds, the AFT set aside the punishment of ‘dismissal from the service’and held that interest of justice would be met if only the punishment of‘forfeiture of seniority of 24 months’ is inflicted upon the respondent. Ithas, accordingly, directed the appellants to reinstate the respondent innaval service without payment of any salary for the intervening period,i.e., the back wages. Both the parties feel aggrieved by this judgment.

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AIn the first instance, they moved application before the AFT seekingleave to appeal. The AFT declined this request stating that no questionof law of public importance is involved. This is the reason for both theparties to approach this Court. These appeals were clubbed together.In the appeal, filed by the respondent while issuing notice, operation ofthe order of the AFT was also stayed. As a result, the respondent hasBnot been allowed to join back the service. Both these appeals wereadmitted formally on July 01, 2016 and direction was given to expeditethe hearing. It was also directed that interim order shall continue tooperate. This is how the appeals have come up for final hearing inwhich both the sides were heard at length.

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3. With the aforesaid introductory remarks, we now proceed tonarrate the factual matrix of the case in some more detail. The respondentwas commissioned in Indian Navy on January 01, 1998 as Sub.Lieutenant. He was promoted to the rank of Commander on January 16,2011. At that time, he was posted as the Executive Officer of INSDMahish at Port Blair in Andaman Island. His aforesaid posting wasfrom May, 2010 to June, 2011. In June, 2011, he was transferred to INSViraat as Commander Operations vide orders dated June 02, 2011. Inobedience to the said orders, the respondent along with his wife anddaughters left for Mumbai on June 15, 2011. The respondent joinedduties at the transferred place with 10 days’ leave/joining time. He hadEundertaken the aforesaid journey from Port Blair to Mumbai by IndianAirlines. According to him, on reaching Mumbai he stayed with hissister-in-law Amita Gavankar at Goregaon, Mumbai as he was on leavetill June 25, 2011. From June 16, 2011 to June 19, 2011, he visited differentplaces in Maharashtra and even went to Goa with his family. On June F25, 2011, he shifted to the official accommodation, i.e., Integrated MessSports Complex Cottage No. 1, along with his wife and daughter, whichaccommodation was allotted to him at that time. On June 26, 2011, hereported to INS Taragiri, the waiting ship for INS Viraat, as INS Viraatwas berth at Kochi at that time. On June 29, 2011, he reported for dutyat INS Viraat at Kochi.G

4. It may be mentioned, at this stage, that according to him he hadearlier purchased two mobile sim cards for mobile hand sets when hewas posted at INS Mahish, Port Blair. One from BSNL with no.[REDACTED] for himself and 2[nd] from Vodafone South Limited with no.[REDACTED] for his wife. Again, according to him, on 19[th] June, 2011

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when he had come to Mumbai, he purchased two sim cards from IdeaCellular Pvt. Ltd., one having [REDACTED] for himself and other no.[REDACTED] which was meant for his wife.

5. On July 01, 2011 at about 22.45 hours, he was woken up fromhis sleep and escorted by Commander Manoj Jha (PW-20) to CaptainHari Kumar, the Commanding Officer of INS Viraat. Captain HariKumar questioned him about mobile no. [REDACTED], as sexually explicitcalls were received from the same number by wives of some navalofficers. He explained that this sim card remained in possession of hiswife through out who had used the same. Search was made but no suchsim card was found with the respondent. His mobile telephone no.[REDACTED] was confiscated and detailed for 18 hours whereafter, onthe next day, it was returned back to him. Thereafter, One Man Inquiry(for short, ‘OMI’) was ordered on January 05, 2012. This OMI wasconducted with effect from January 11, 2012 and concluded on January31, 2012. Thereupon, the respondent was issued a charge sheet datedSeptember 05, 2012 for trial by Court Martial. Ten charges were framedagainst the respondent. Seven out of which were under Section 77(2)of the Navy Act, 1957 (hereinafter referred to as the ‘the Act”) readwith Section 509 of the Indian Penal Code (‘IPC’) and three chargeswere framed against the respondent under Sections 58, 74 and 48(c) ofthe Navy Act. These charges pertained to the alleged obscene callspurportedly made by the respondent to the three ladies.

6. It is on the findings of the OMI, Headquarters Western NavalCommand directed the Commanding Officer, INS Kunjali where therespondent was attached for the investigation, to investigate and recordSummary of Evidence (SoE) of prosecution witnesses.

7. On September 05, 2012, the Commanding Officer, INS Kunjaliread the charges mentioned in the charge sheet and the respondent wasgiven a chance to file reply thereto, which he did. Thereafter, decisionwas taken that the respondent be brought to trial of the Court Martial. Inthe Court Martial, the prosecution examined 33 witnesses and produced40 documents which were exhibited. The court called for five witnessesas co-witnesses and exhibited 19 documents as ‘exhibits’ (C-1 to C-19).After the conclusion of the trial, finding of ‘guilty’ was returned in respectof all the 10 charges and the punishment was awarded as mentionedabove. Thereafter, the appellant filed O.A. before the Tribunal.

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A8. The facts which have been noted upto now would demonstratethat main allegation against the respondent was that he had made explicitsexual calls to three ladies, namely, Mrs. Reena Chandel (PW-9),Mrs. Aditi Barathwal (PW-12) and Mrs. Pallavi Tiwari (PW-18), whoare wives of three officers of Navy. These calls were made fromVodafone Cell Phone No. [REDACTED]. Further, these calls were madeBon their landline numbers which were provided by NOFRA Exchangeinstalled and operated by NOFRA (Naval Officers Residential Area).Each of the officers residing in the area is provided with an extensionnumber from the Exchange of NOFRA. They were not knowing theperson making the calls. They complained to their husbands, who, inCturn, reported to their senior officers and finally, all the sexually explicitcalls made to these three ladies were traced to Mobile No. [REDACTED].These calls were made to Reena Chandel on June 21, 2011 in the night,on June 22, 2011 in the morning, on June 23, 2011 in the afternoon andthe last call was made to her on June 30, 2011 in the morning at 06:57.

Her extension number was 222217. Thirteen calls were made toDMrs. Pallavi (PW-18) during the night between June 31, 2011 and July01, 2011. PW-12 Aditi received similar calls twice in the night on June30, 2011. According to the prosecution, all the calls were traced throughthe record of NOFRA Exchange to Mobile No. [REDACTED] registeredin the name of the accused. Initially, the Naval Authorities or the officersEoperating NOFRA Exchange had no knowledge as to whom the saidmobile belonged. Therefore, it was difficult for them to trace the personmaking the calls. They approached the Deputy Commissioner of Police,Zone I, Mumbai, who made inquiries from several service providersabout the said mobile number. Finally, it was revealed that the saidmobile was registered in the name of the respondent with VodafoneFSouth Limited, having office in Kolkata.9. In order to prove the aforesaid charge, the appellants wererequired to establish the aforesaid ingredients:

(a) The respondent possessed, at the relevant time, VodafoneGCell Phone No. [REDACTED].

(b) Obscene Calls were made to the landline numbers of thethree ladies and on the dates mentioned above.

(c) These calls originated from Mobile No. [REDACTED] andwere made by the respondent and none else.

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10. Insofar as first ingredient is concerned, it has been admittedby the respondent himself that he was having Cell Phone with VodafoneConnection and the sim card was provided with phone number[REDACTED]. The defence of the respondent, however, was that on therelevant dates, the respondent was not having this number and, in fact,the sim card had been lost and a report regarding the loss of sim cardwas made to the Police. Details of his explanation, in this behalf, arethat when the respondent was posted at Port Blair in Andaman andNicobar Islands, he had purchased two mobile sim cards for mobilehandsets: one from BSNL with No. [REDACTED] for himself and thesecond from Vodafone South Limited with No. [REDACTED] for his wife,Mrs. Pallavi Desai. In June, 2011, he was transferred and posted toINS Viraat as Commander Operations vide order dated June 02, 2011.Pursuant to the said transfer orders, after reaching Mumbai, he purchasedtwo Idea sim cards from Idea Cellular Private Limited on June 19, 2011,having number [REDACTED] for himself and [REDACTED] for his wife.He claimed that he destroyed his mobile sim card No. [REDACTED] andreplaced the same with new mobile sim No. [REDACTED]. He alsoclaimed to have advised his wife to replace her old sim No. [REDACTED]by the new mobile sim No. [REDACTED]. According to him, when officersvisited his cabin while he was at INS, Viraat at Kochi on July 01, 2011and inquired him about Mobile No. [REDACTED], he explained that thesaid number was used throughout by his wife. Thereafter, when hecalled his wife, he was informed that said sim card was missing fromher purse. Then, he advised his wife to lodge a report with the Policeand inform the service provider which she did on July 04, 2011. It is alsohis case that when the officers searched his cabin, they could not findthat sim card with the respondent which shows that the said sim cardwas not with the respondent and, therefore, he could not have used thesim to make the purported obscene calls.

11. It is clear from the above that the respondent has admitted thefact that he had purchased sim card from Vodafone with Mobile No.[REDACTED]. However, according to him, this sim card was not withhim and was being used by his wife. Moreover, after he had purchasedanother sim card on reaching Mumbai, this sim card was not used andwas ultimately found missing even from his wife custody. The aforesaidexplanation of the respondent has not been accepted either by the GCMor the AFT, and rightly so.

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A12. The reason for discarding the explanation of the respondent isthat he has been taking inconsistent stands in this behalf. Before theCommanding Officer, the respondent had stated that he had thrown awayhis sim card in Goregaon and, therefore, he could not have used this simcard at the relevant time i.e. on the dates of alleged incident when theobscene calls were made. On the other hand, when the show causeBnotice has been issued to the respondent on July 02, 2011, in responsethereto, in his deposition, the respondent took up the position that hiswife has kept the sim card in his purse and could have dropped it whiletravelling.

Apart from the aforesaid contradictory versions given by theCrespondent himself, one particular piece of evidence produced by theappellants clinches the issue. It is noticed by the AFT that as per reportdated July 04, 2011 (Ex. P-29) lodged by the wife of the respondent onJuly 04, 2011, the sim card was lost sometime between 6 pm on June 20,2011 to June 25, 2011. However, even after June 20, 2011, calls wereDmade from this mobile number to Cdr. Arjun Kumar (PW-33) and Cdr.Arjun Kumar deposed that he has received these calls from therespondent. This aspect is discussed by the AFT in the following manner:

“If we go by this report lodged by the wife of the accused, itappears that the said SIM card was lost in transit sometimes fromE6.00 p.m. of 20[th] to 25[th] June, 2011. Now, according to the accused,from 19[th] June, 2011, the SIM card of his wife was replaced bythe new card and sometimes between the evening of 20[th] June,2011 till 25[th] June, 2011, the old SIM card of [REDACTED] waslost. If it is so, this number could not have been used for makingany call at least from 21[st] June, 2011 onwards. On perusal of theFCDR, Exhibit T-2, it appears that on 20[th] June, 2011 at 13.29 hours,a call was made from this mobile number to mobile No.[REDACTED], which was the mobile number of Cdr. Arjun Kumar.The record also shows that on 20[th] June, 2011 itself at 18.31 hours,again, there was a call from the said mobile to the above referredGmobile number of Cdr. Arjun Kumar. There was also call fromthe said mobile of the accused to the mobile of Cdr. Arjun Kumaron 23[rd] June, 2011 at 11.46 hours. On 25[th] June, 2011 at 09.50hours and 15.06 hours, again, there were two calls from the saidmobile No. [REDACTED] to mobile No. [REDACTED] of Cdr. ArjunKumar. Again, there were three calls from the said mobileHnumber to the mobile of Cdr. Arjun Kumar on 28[th] June, 2011

between 17.15 to 17.55 hours. PW-33 Cdr. Arjun Kumar hasdeposed on oath that he had received these calls and that theaccused was in contact with him on all these days from hismobile. It shows that the said mobile was being used by theaccused even after 25[th] June, 2011. Cdr. Arjun Kumar had noreason to falsely depose that he had received the calls from theaccused on these days.”

Dr. Sharma had made extensive argument in endeavour to dislodgethe creditworthiness of Cdr. Arjun Kumar. However, in our view, hisdeposition remains unshaken and credible.

13. Another interesting evidence which have surfaced and whichnails the respondent on this aspect is that as per the respondent himself,he had proceeded to Kochi on June 29, 2011 to join the duty on INSViraat. For this purpose, he had left Mumbai on June 29, 2011 by AirIndia AI-681 flight which left Mumbai at 5:30 pm and arrived Kochi at7:20 pm on June 29, 2011. One of the calls was made from this phone at05:01 pm from Mumbai area. Thereafter, another call was made fromthis very phone on the same day at 08:01 pm from Kerala area. At05:01 pm, when the call was made from Mumbai, the respondent was inMumbai and his flight left Mumbai at 05:30 pm. He had reached Kochiat 07:20 pm and another call is made at 08:01 pm. This also shows thatthe Cell Phone with the aforesaid number was with the respondent only.The AFT has lucidly discussed this aspect in the following manner:

“He claims to have left Mumbai on 29[th] June, 2011 by Air IndiaAI-681 flight. Exhibit P-S is the flight details and the BoardingPass shows that the boarding time was 17.05 hrs. The flightdetails show that AI-681 flight left Mumbai at 5.30 p.m. andarrived Kochi at 7.20 p.m. on 29[th] June, 2011. Going back to theCDR, it is revealed that on 29[th] June, 2011, the said call was madefrom the said mobile of the accused at 17.01 hrs. The recordclearly shows that the call was made from Vodafone Mumbaiarea. Thereafter, the next call from the said mobile of theaccused on 29[th] June, 2011 at 20.01 hrs. was made and that callwas made from Vodafone Kerala area. Thereafter, all the callson 29[th] and 30[th] June and 1[st] July, 2011 are made from the saidmobile of the accused from Vodafone Kerala area. Admittedly,during that period, the accused was at Kochi. If the said SIMCard was found by some other person and he was using the SIM

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Acard, he could not travelled along with the accused at the sametime and in the same flight. This document produced by theaccused himself goes to prove, beyond any reasonable doubt, thatthe said mobile was being used by the accused and none else and,therefore, it must be held that all the sexually explicit calls to thethree ladies were made by the accused from his said mobile andBnone else.”

14. We are, therefore, of the opinion that the prosecution hasbeen able to give satisfactory proof to prove that when the offendingcalls in question were made, the Cell Phone with Mobile No. [REDACTED]was with the respondent.C

15. Coming to the second ingredient, in order to prove that sexuallyexplicit calls were received by the wives of the three officers, theprosecution produced these ladies as PW-9, PW-12 and PW-18. Theyhave explained in detail having received these calls and the offendinglanguage. To show that the calls were received from the aforesaidDphone which belongs to the respondent, the prosecution had producedCall Data Record (CDR) of NOFRA land line numbers. Cdr. AnuragSaxena, Officer-in-Charge of NOFRA who appeared as PW-3 probethe said CDRs of NOFRA Telephone Exchange showing that all thecalls had originated from Mobile No. [REDACTED]. He also producedEExh. P-10, which is the certificate issued by him to the effect that theland line numbers of the three female victims were provided by theNOFRA Telephone Exchange. He specifically deposed that true andcorrect call records have been produced and there is no reason todisbelieve that.F16. We now advert to the third ingredient. From the evidence F16. We now advert to the third ingredient. From the evidencediscussed above, it stands established that calls were made from CellPhone No. [REDACTED]. However, some controversy has arisen inrespect of CDRs produced from the service provider, namely, VodafoneSouth Mumbai and the respondent is trying to take advantage thereof.In this behalf, it may be mentioned that in the NOFRA records, thoughGCell Phone No. [REDACTED] is rightly mentioned, the said phone numberis displayed as belonging to Idea network. On that basis, it was arguedthat NOFRA CDRs could not have been relied upon. However, it needsto be recorded that the appellants had given satisfactory explanationsfor the aforesaid mistake. It was explained before the AFT that theHmobile number of the respondent had been erroneously shown as an Idea Cell Number due to feeding of Code “95” as that of Idea Cell in thesystem of NOFRA. This was also clarified by Mr. Fernandes whoappeared as CW-2. He was the Programmer of the NOFRA system.It is significant to point out that there is no cross-examination by therespondent on this point. The discussion of the AFT, on this aspect, runsas follows:

“The learned counsel for the accused pointed out that as per callrecord from NOFRA, vide Exhibit P-8 for Extension No. 7000,Exhibit P-9 for Extension No. 7164 and Exhibit P-10 forExtension No. 6328, service provider of said Mobile No.[REDACTED] was Idea Cell. He contended that in view of thisrecord, the CDR Exhibit P-27 or Exhibit T-2 from Vodafone Southcannot be believed. However, the learned counsel for therespondents contended that it was wrongly shown that saidMobile Number was of Idea Cell and this mistake had occurreddue to feeding of Code “95” as of Idea Cell in the system ofNOFRA. This fact is clarified by CW-2 Fernandes, who was theProgrammer for NOFRA System. The learned counsel for theaccused contended that the accused was not given opportunity tocross-examine the Court-witnesses and, therefore, the evidenceof CW-2 Fernandes is liable to be rejected. During the trial, theaccused was defended by a lawyer. The accused and his advocatewere present at the time of recording of evidence of the Court-witnesses. There is nothing to show that the advocate wanted tocross-examine the Court-witnesses but he was not allowed. Theevidence of CW-2 Fernandes has gone unchallenged. CDRExhibit T-2 is proved by TW-1 Sabir Kumar Deb, as discussedearlier. Therefore, no importance needs to be given to the wronginformation in NOFRA record that the mobile number was ofIdea Cell.”

It is also pertinent to note that apart from raising the dispute thatNOFRA record shows that it was Idea Cell number, it is not disputedthat phone number in question as recorded in NOFRA system is thesame which belongs to the respondent. It is only the description of thephone number that had been erroneously displayed as Idea Cell whichaspect has been satisfactorily explained by the appellants. It would beof no significance, inasmuch as same Cell number could not belong toboth the Idea as well as Vodafone.

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A17. One aspect remains to be discussed. In the Court Martialproceedings, officer from Vodafone South Mumbai was produced whohad brought the CDR of the Cell Phone in question to prove that callswere made from this phone. The said officer was examined as PW-13and CDR record produced by him was marked as Exh. P-27. However,before the AFT, the respondent had raised the objection that Exh. P-27Bdid not have any evidentiary value as Certificate under Section 65-B ofthe Indian Evidence Act, 1872 produced by PW-13 was in relation tocustomer agreement and not for CDR and that PW-13 was Nodal Officerfor Vodafone Mumbai and not for Vodafone South. In view of theaforesaid technical objection, the appellants filed an application underCSection 17 of the Armed Forces Tribunal Act, 2007 for summoning NodalOfficer, Mumbai Sector, Vodafone along with a direction to produce theCDR of the mobile number of the respondent. Order dated November20, 2014 was passed on this application whereby prayer contained in theapplication was allowed and summons issued to the Nodal Officer,Mumbai Sector, Vodafone for production of CDR of the mobile numberDbelonging to the respondent along with the Certificate under Section 65-B of the Indian Evidence Act, 1872. This order was not challenged bythe respondent. In response to the summons issued by the AFT onNovember 10, 2014, Vodafone South Limited, Kolkata had submittedthe CDR as well as the Customer Agreement of the respondent alongEwith the certificate under Section 65-B which came to be exhibited asExhibit T-3. However, the AFT was not satisfied with the format inwhich Exhibit T-3 had been made available by Vodafone South Limited.In its order dated February 26, 2015, the AFT categorically observedthat the CDR (Exhibit T-3) made available to the AFT was identical tothe previous CDR (Exhibit P-27) in respect of the serial number of calls,Fthe A Number (i.e. the number from which the calls had originated) andthe B Number (the number to which the call had been made), the year,time and duration of the call. However, certain details such as the date,time, month etc. were missing from the said CDR (Exhibit T-3). Further,Section 65-B certificate did not bear the designation of the person whoGhad signed the certificate. As such, vide order dated February 26, 2015,the AFT directed the Nodal Officer, Vodafone South to produce beforethe Tribunal the complete CDR of the said Mobile phone number for theperiod from June 01, 2011 to July 04, 2011 along with the CustomerAgreement and the Certificate under Section 65-B before the AFT. Theconcerned official of Vodafone had also been directed to be presentH

before the Tribunal on March 03, 2015. In compliance Mr. Subir KumarDeb from Vodafone appeared as TW-1 before the AFT and explainedthat it is only due to improper alignment etc. that certain information hadbeen omitted from being generated in the CDR Exhibit T-3. He alsoexplained that sometimes because of the failure of the linking system inthe server, some information may not come out. However, the AFTdecided not to take into consideration the CDR Exhibit T-3. In terms ofthe order dated February 26, 2015 of the AFT, Mr. Sudhir Kumar Deb,official of Vodafone India, appeared before the AFT as TW-1. TheAFT has recorded the testimony of TW-1 in relation to the manner inwhich the CDRs are stored by Vodafone in the Centralized Server locatedat Pune. TW-1 also produced before the Tribunal – the CDR of theMobile number of the respondent (Exhibit T-2) along with the Certificateunder Section 65-B of the Indian Evidence Act, 1872 (Exhibit T-1). CDRExhibit T-2 along with the certificate under Section 65-B being ExhibitT-1 duly proved by TW-1. In his cross-examination, TW-1 had interalia stated that whereas CDR Exhibit T-3 (submitted to the AFT inDecember, 2014) had been generated on November 01, 2011, Exhibit T-2 had been generated on March 02, 2015 and had been signed and certifiedby TW-1. The alleged discrepancy in CDR Exhibit T-2 sought to bepointed out during his cross-examination was also duly explained by TW-1. He had explained that after 2011, as per guidelines issued by DoT,Government of India, the format of the CDR had been changed. Afterconsidering the testimony of TW-1, AFT has observed that Exhibit T-2,submitted by TW-1, is reliable and is properly stored and generated inthe Centralized Server of Vodafone, as under:

“However, Subir Kumar Deb deposed on oath and explained thatthough the CDR, Exhibit T-3, was submitted with certificate inDecember, 2014, the heading of the same clearly shows that itwas generated on November 01, 2011, while the CDR, ExhibitT-2, signed and certified by him, was generated on March 2, 2015,after receipt of summons from this Tribunal. He explained that ifthe specific command is given for header or heading of the calldata for the target mobile number, i.e., the mobile number aboutwhich the call data is to be generated, the period, the date and thetime of generation are printed and in such case, the first column isalways the serial number of the calls. But if that command is notgiven the heading and the serial number column are not printed.

AB

C

DE

FG

H

A

He explained that everyday hundreds of CDRs are generatedand printed and possibly, while taking the print of the CDR,Exhibit T-2, he had not given the command for header or headingand, therefore, heading as well as column for serial number ismissing from the CDR, Exhibit T-2. He further explained thatafter 2011, as per the guidelines issued by the Government ofIndia, Department of Tele-Communications, the format of CDRhas been changed and as per the said guidelines, missed calls arealso required to be deleted from the CDR. He pointed out thatthese missed calls in respect of SMS are still maintained becausefrom the SMS, the company generates revenue, while no suchrevenue is generated from the missed calls. Therefore, the missedcalls, which were shown as ‘Null’ or ‘Nil’ call time in the earlierrecord, are not shown in the present record, but such ‘Null’ recordabout the SMS is still maintained. It appears that the column for‘Call Time’ has been shifted from the 9[th] column to 3[rd] columndue to change in format. In view of the explanation given bywitness Subir Kumar Deb, we are satisfied that the CDR, ExhibitT-2, now submitted by him, is reliable and it is properly stored andgenerated in the Centralised Server, as deposed by him. We donot find any major defect and the minor changes and thedifferences in the earlier record and the present record, ExhibitT-2, are properly explained by the witness.”

B

C

D

E

B

C

D

E

18. We are in agreement with the aforesaid findings. Learnedcounsel for the appellants rightly argued that non-production of thecertificate under Section 65-B of the Indian Evidence Act, 1872 on anearlier occasion was a curable defect which stood cured. Law in thisbehalf has been settled by the judgment of this Court in Sonu aliasAmar v. State of Haryana[1], which can be traced to the followingdiscussion in the said judgment:

F

“32. It is nobody’s case that CDRs which are a form ofelectronic record are not inherently admissible in evidence. TheGobjection is that they were marked before the trial court without acertificate as required by Section 65-B(4). It is clear from thejudgments referred to supra that an objection relating to the modeor method of proof has to be raised at the time of marking of thedocument as an exhibit and not later. The crucial test, as1 (2017) 8 SCC 570H

affirmed by this Court, is whether the defect could have beencured at the stage of marking the document. Applying this test tothe present case, if an objection was taken to the CDRs beingmarked without a certificate, the Court could have given theprosecution an opportunity to rectify the deficiency. It is alsoclear from the above judgments that objections regardingadmissibility of documents which are per se inadmissible can betaken even at the appellate stage. Admissibility of a documentwhich is inherently inadmissible is an issue which can be taken upat the appellate stage because it is a fundamental issue. Themode or method of proof is procedural and objections, if not takenat the trial, cannot be permitted at the appellate stage. If theobjections to the mode of proof are permitted to be taken at theappellate stage by a party, the other side does not have anopportunity of rectifying the deficiencies. The learned Senior Coun-sel for the State referred to statements under Section 161 CrPC,1973 as an example of documents falling under the said categoryof inherently inadmissible evidence. CDRs do not fall in the saidcategory of documents. We are satisfied that an objection thatCDRs are unreliable due to violation of the procedure prescribedin Section 65-B(4) cannot be permitted to be raised at this stageas the objection relates to the mode or method of proof.

(emphasis added)”

19. We may point out, at this stage, that when the AFT found thetechnical defect in Exhibit T-2, it was in support of Section 65-B of theIndian Evidence Act. The AFT had summoned the record in exercise ofits power contained in Section 17 of the Act.

“17. Powers of the Tribunal on appeal under section 15.— TheTribunal, while hearing and deciding an appeal underSection 15, shall have the power—

(a) to order production of documents or exhibits connectedwith the proceedings before the court-martial; (b) to order the attendance of the witnesses;

(c) to receive evidence;

(d) to obtain reports from court-martial; (e) order reference of any question for inquiry; A

B

C

D

E

F

G

H

A(f) appoint a person with special expert knowledge to act asan assessor; and (g) to determine any question which is necessary to be determined in order to do justice in the case.”

20. It was argued by the learned ASG appearing for the Union ofBIndia that powers conferred upon the AFT under Section 17 of the Actare similar to the powers of the Industrial Tribunal/Labour Court specifiedin Section 11A of the Industrial Disputes Act and, therefore, judgment ofthis Court in United Planters Association of Southern India v. K.G.

Sangameswaran and another[2 ]explaining the powers of Labour Court/Industrial Tribunal would be applicable to AFT as well. However, weCneed not go into this question in these proceedings inasmuch as the learnedcounsel appearing for respondent did not question the powers of theAFT to summon the records from Vodafone and permitting the partiesto lead evidence before it as well as examining the said evidence. Thus,in the absence of any question mark put up by the learned counsel forDthe respondent to the course of action taken by the AFT, we proceed onthe basis that this exercise was validly done.

21. Dr. Sharma, learned counsel appearing for the respondenthad taken pains to point out certain discrepancies in Exhibit T-2 as wellas Exhibit P-27 and had, on that, basis, made a fervent plea that suchdocuments had no credence or evidentiary value and, therefore, AFTEhad committed a serious error in relying upon these documents. It is notnecessary to pinpoint the alleged discrepancies which according to Dr.Sharma had occurred in these documents as we find that these aresuitably take care of by the Tribunal itself and the above discussion aswell as the discussion contained hereinafter would reflect the nature ofFso-called discrepancies and the answer thereto by the AFT. After purposewould be served by reproducing the following portion of the orders datedFebruary 26, 2015 passed by AFT after the official of the VodafoneSouth Limited, Kolkata produced the CDR as well as documentspertaining to customer agreement of the respondent pertaining to hismobile umber [REDACTED] along with certificate under Section 65-B ofGthe Indian Evidence Act.

“2. After receipt of the said record, we have carefully perusedthe Call Data Record submitted with the aforesaid certificate dated10[th] December, 2014, as well as the earlier Call Data Recordpurporting to have been issued by Vodafone, along with theH2 (1997) 4 SCC 741

Customer Agreement on 26[th] December, 2012. on careful perusaland comparison of both the records, we have noted that in therecord supplied earlier during the Court-Martial proceedings,against every call, the date was mentioned in full like o1-Jun-2011”.However, in the column for the date in the date which is nowsupplied, against all the entries, except the entry dated“01-Jul-2011”, the dates are missing. Only year ‘2011’ is shown.In the prescribed proforma of the data, there are columns for“First Cell ID A”, “Last Cell ID A’, “IMEI” and “IMSI” also. Inthe previous record, the information under all the four heads wasprovided against each call entry. However, that information iscompletely missing in The record, which is now supplied to us.The record purports to have been stored on the designated harddisk of the computer/system of Vodafone South Limited and thedata, which is supplied to us, purports to have been generated bythe computer automatically. In view of this system, when certaindata has been stored, it must be completely generated which thehard copy is required to be taken. Only some of the record cannotbe lost. For example, if the full date is generated, the date and themonth cannot be lost if year “2011” remains. Similarly, the dataunder the four heads, viz., First Cell ID A, Last Cell ID A, IMEIand IMSI, could not be lost. Either the whole of the record couldhave been lost or no part of it could be lost. The Call Data Record,which is supplied to us now, s identical with the previous record inrespect of the serial number of the calls, a number, i.e., Numberof the Mobile Phone to which the call is made, year, time andduration of the call are shown. We fail to understand why thedata about the date, month and under other heads as indicatedabove is not shown in the Call Data Record submitted to us. Asthe certificate issued under Section 65-B does not bear the nameand designation of the person, who has signed the certificate, it isdifficult for us, at this stage, to know how and why the completeCall Data Record is not submitted to us. In view of this, eventhough the formality of issuance of certificate under Section 65-Bof the Indian Evidence Act is completed, we are of the opinionthat our order to submit the complete Call Data Record and otherdocuments with the certificate under Section 65-B has not beencomplied by Vodafone South Limited. Therefore, we find itnecessary to issue the following directions:- ABCD

EFG

H

A

B

C

D

E

F

G

H

Summons be issued to Nodal Officer, Vodafone SouthLimited, to direct the officer, who is responsible for theoperations and the Management of the computer systemrequired for the purpose of providing mobile facility to securehard copies of the complete Call Data Record of Mobile PhoneNo. [REDACTED] for the period from 1[st] June, 2011 to 4[th] July,2011, along with the record of Customer Agreement and tosubmit the same to this Tribunal with certificate under Section65-B, disclosing the name and designation of the person whohas signed the said certificate. The said record shall besubmitted before this Tribunal on 3[rd] March, 2015 before 11.00A.M. by the officer signing the certificate under Section 65-Bpersonally without fail.

We also hereby direct Vodafone South Limited to disclose thename and designation of the person, who had issued the certificateunder Section 65-B on 10[th] December, 2014, along with Call DataRecord and also to keep him present before this Tribunal on 3[rd]March, 2015 at 11.00 A.M. to explain how some of the data,particularly the dates, First Call ID A, Last Call ID A, IMEI andIMSI, are missing from the said record.”

22. In this behalf, we also note that Mr. Sabir Kumar Deb, officialof Vodafone, appeared as a witness, in his deposition before the AFThad suitably and satisfactorily clarified all the aspects including thefollowing :

“Examination-in-Chief :

The Call Data Record of the mobile phones are maintained inthe centralised server located at Pune. Call records of the phonesissued by all the 23 licensees under Vodafone Limited arepreserved and maintained in the centralised server.

The mobile number for which the date is extracted is the ‘targetnumbers’ for the system. Identity number of hand set from whichthat mobile number operates is recorded in the column IMEI.The same handset number will be shown in that column when acall is made or is received by that mobile handset. However, ifthe handset is changed, the identity of that handset is changedand therefore, number may be same.

When mobile number is roaming outside the territory of theservice provider/licensee the Cell IDA and IMEI will not record the correct numbers because it may not capture the correct numberin the area outside the jurisdiction of the licensee. Therefore, atpage No. 4 from 3[rd] entry dated 15.06.2011, the column for IMEIis blank. From that entry onwards till the end on 01.07.2011 themobile number was operating outside the home network area. Inthe last column the area in which the mobile was roaming theoperating is indicated.

Now, I am shown the record which I have s8ubmitted to theCourt as per Ex. T-2. After perusing that record with the recordavailable with me, I say that due to oversight, page no. 8 of therecord showing the call from 30.06.2011 at 6:20:12 to the call on01.07.2011 at 21:53:28 has not been submitted to the Court. Now,I am attaching the page containing the said record under mysignature and stamp of Vodafone South Limited. I state that thisrecord is true and generated as per the system. (The said recordis added to the CDR Ex. T-2 as page No. 8).

Now, the record and letter dated 10.12.2014 marked ArticleT-1 (Now T-3) collectively is shown to me. It contains same calldata record which I have produced today. However, in the recorddata, first Cell IDA, last cell IDA, IMEI and IMSE columns areblank. Also, SMS centre column is blank. The title of that recordshows that the record of mobile number 95664784782 from1.6.2011 to 4.7.2011 and report dated was 1.11.2011. similar titleis not printed on the record which I have submitted today. Thecolumns noted above might have remained blank because of somemisalignment of columns while taking the prints of the call record.Now, said record Article T-1 is marked Exhibit T-3.

I maintain that the information in the Call Data Record couldnot be selectively deleted before taking print.

Cross-Examination:

I voluntarily say tat sometimes, due to failure of network link alsosome date may be missing at particular moment, and is not printed.Now, it is brought to my notice that in Call Data Record at ExhibitT-2, column ‘call time’ is listed earlier the Call Data Record atEx. T-3 where it is 9[th] column. Now, on perusal of the two records,I see that in Ex. T-2, SMS MT or SMS O are show but in Ex. T-3 they are indicated as SMS INC and SMS OUT respectively.Call Data Record Exh. T-3 shows that it was originated on AB

C

DE

F

G

H

ANovember 1[st], 2011 and Call Data Record at Ex. T-2 was originatedon 2[nd] March, 2015.

Now, it is brought to my notice that entry nos. 329 and 330 are notbe seen in the Call Data Report Ex. T-2. There are similar othernumbers also which are missing from Exh. T-2. I say thatBwherever there were missed calls, they were shown as NULL.In 2011, such ‘missed c alls’ have been deleted from the recordand, therefore, they are not seen in Call Data Record at Ex. T-2.However, the SMS which were shown as NULL and which couldnot materialise are still maintained because the company was toearn revenue.”C23. We, thus, do not agree with the submission of the learnedcounsel for the respondent that there were discrepancies in the CDRproduced by Vodafone before the AFT. In fact, the witness fromVodafone was able to clear all the doubts which were expressed by therespondent.D24. In view of this factual position emerging on record, judgmentin the case of Shafhi Mohammad. V. State of Himachal Pradesh[3] isof no avail to the respondent as it is not applicable to the facts andcircumstances of the present case.

25. At the end, insofar as appeal of the respondent is concerned,we would like to comment that once the charges are proved in the courtEmartial conducted by the authorities and the AFT also has given itsimprimatur to the same by putting its stamp of approval, that too, afterrecording the evidence, with detailed analyses thereof, it is not the functionof this Court to revisit the entire evidence to find out as to whether thefinding of the authorities below are correct or not. No doubt, the instantFproceedings are in the form of appeal preferred under Sections 30 and31 of the Act and, therefore, the Court is examining the matter as anappellate authority. However, the scope of such appeal is limited as canbe seen from the language of these provisions:

“30. Appeal to Supreme Court.—(1) Subject to the provisionsof section 31, an appeal shall lie to the Supreme Court against theGfinal decision or order of the Tribunal (other than an order passedunder section 19):

Provided that such appeal is preferred within a period of ninetydays of the said decision or order:

3 (2018) 2 SCC 801H

Provided further that there shall be no appeal against aninterlocutory order of the Tribunal.

(2) An appeal shall lie to the Supreme Court as of right fromany order or decision of the Tribunal in the exercise of its jurisdictionto punish for contempt:

Provided that an appeal under this sub-section shall be filed inthe Supreme Court within sixty days from the date of the orderappealed against.

(3) Pending any appeal under sub-section (2), the SupremeCourt may order that—

(a) the execution of the punishment or the order appealedagainst be suspended; or (b) if the appellant is in confinement, he be released on bail:

Provided that where an appellant satisfies the Tribunal that heintends to prefer an appeal, the Tribunal may also exercise any ofthe powers conferred under clause (a) or clause (b), as the casemay be.

31. Leave to appeal.—(1) An appeal to the Supreme Courtshall lie with the leave of the Tribunal; and such leave shall not begranted unless it is certified by the Tribunal that a point of law ofgeneral public importance is involved in the decision, or it appearsto the Supreme Court that the point is one which ought to beconsidered by that Court.

(2) An application to the Tribunal for leave to appeal to the SupremeCourt shall be made within a period of thirty days beginning withthe date of the decision of the Tribunal and an application to theSupreme Court for leave shall be made within a period of thirtydays beginning with the date on which the application for leave isrefused by the Tribunal.

(3) An appeal shall be treated as pending until any application forleave to appeal is disposed of and if leave to appeal is granted,until the appeal is disposed of; and an application for leave toappeal shall be treated as disposed of at the expiration of the timewithin which it might have been made, but it is not made withinthat time.”

A

B

C

D

E

F

G

A26. A combined reading of the aforesaid provisions clearly bringsout that appeal to this Court has to be on a point of law on general publicimportance.

27. In any case, this Court has examined the records having regardto the submissions made by Dr. Sharma on behalf of the respondents.BHowever, no case is made out that the conclusion arrived at by theTribunal was utterly perverse which no reasonable person could havearrived at. We have not found any such infirmity at all.

28. Resultantly, we do not find any merit in the appeal preferredby the Officer.

29. We now advert to the appeal preferred by the Union of India.CAs pointed out above, the limited scope of this appeal is to be on thequantum of sentence given by the AFT. After setting aside the sentenceof dismissal from service, the Tribunal has substituted the same by thesentence of loss of seniority for 24 months. Further, while directingreinstatement in service, the Tribunal has also ordered that the respondentDherein shall not be entitled to pay and allowances for the period from thedate when he was dismissed from the service till the date of reinstatement,if it is within three months from the date of order of the Tribunal.

30. The respondent has not reinstated in service as this court had,vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, the respondent is still out of service and, therefore, lostEhis salary from the date of the order of the Tribunal which was passedon March 04, 2015. The respondent was dismissed from service videorders dated January 26, 2013. For all these reasons, we are not inclinedto interfere with the order of the Tribunal on sentence inasmuch theeffect is that not only seniority of the respondent is forfeited by 24 months,Fhe is also deprived of his salary for more than five years. Such asentence, according to us, would meet the ends of justice and in thesecircumstances discretion exercised by the Tribunal does not need anyinterference.

31. As a consequence, both the appeals are dismissed. Therespondent herein shall be reinstated in service within 2 weeks from theGdate of passing of this order and he shall not be entitled to any salary forthe intervening period, i.e., from the date of dismissal till the date ofreinstatement.

There shall be no orders as to costs. HDevika GujralH

Appeals dismissed.