Army Act, 1950 — Ss. 63, 69 and 70 — Armed Forces Tribunal Act, 2007 — S. 15(6) — Power of Armed Forces Tribunal to substitute conviction — Scope and ambit — Held, validly exercisable
The Armed Forces Tribunal, in exercise of powers under S. 15(6)(a) of the Armed Forces Tribunal Act, 2007, is competent to substitute the finding of guilty recorded by a General Court Martial (GCM) with a finding of guilty for another offence for which the offender could have been lawfully convicted by the GCM on the same facts and evidence.
Such power may be exercised when the evidence adduced before the Court Martial discloses the commission of a cognate or lesser offence, though not the offence originally charged.
Section 15(6) of the 2007 Act is in pari materia with S. 162 of the Army Act, 1950 and analogous to S. 222 CrPC, 1973, which enables conviction for a lesser or related offence proved by the same evidence.
The legislative intent is to enable the Tribunal to render a lawful finding consistent with the evidence and to prevent failure of justice merely because the charged section was not established in its entirety.
— Held, therefore, substitution of conviction from S. 69 (civil offence) to S. 63 (act prejudicial to good order and discipline) is within the competence of the Tribunal.
S. 63 — Act prejudicial to good order and military discipline — Meaning and application
Section 63 applies to acts or omissions not specifically enumerated as offences in the Act but which are prejudicial to good order and military discipline.
Neglect in compliance with mandatory procedure or standing instructions relating to handling and disposal of ammunition constitutes an act prejudicial to good order and discipline, even in absence of criminal intent or unlawful motive.
Where the appellant, a Colonel, was found in possession of aged ammunition without authority but evidence did not establish offence under S. 3 r/w S. 25(1-B) of the Arms Act, 1959, conviction under S. 63 for failure to maintain discipline and due control over ammunition, was legally sustainable.
Ss. 69 and 70 — Civil offences under the Army Act — Distinction between civil offence and act prejudicial to discipline
Sections 63 and 69 of the Army Act operate in distinct fields.
While S. 69 renders a person subject to the Act liable for civil offences triable by Court Martial, S. 63 covers acts or omissions not amounting to a civil offence but prejudicial to military discipline.
An act which falls short of constituting a civil offence under S. 69 may still attract disciplinary culpability under S. 63 if prejudicial to good order and discipline.
Armed Forces Tribunal Act, 2007 — S. 15(6)(b) — Sentence — Power to mitigate or commute — Proportionality
In terms of S. 15(6)(b) of the 2007 Act, the Tribunal is empowered to mitigate, commute or remit punishment if found excessive, illegal or unjust.
Exercise of such discretion must balance the disciplinary needs of the service with fairness to the individual.
In the present case, Tribunal having found the appellant guilty only of an act prejudicial to discipline, rightly modified the punishment from dismissal from service to compulsory retirement with all pensionary and retiral benefits.
Such punishment held just, proportionate and not arbitrary.
Judicial review — Scope of interference under S. 30, 2007 Act
In appeal under S. 30 of the 2007 Act, interference by the Supreme Court with findings or substituted punishment of the Tribunal is limited to cases where order is arbitrary, unreasonable or capricious.
The Tribunal having exercised its jurisdiction within the statutory framework and on proper appreciation of evidence, no interference warranted.
Result : Appeal dismissed. Tribunal’s judgment dated 01-06-2012 and order dated 03-09-2012 affirmed.
Held :
Tribunal rightly exercised power under S. 15(6) of the 2007 Act in substituting conviction under S. 69 r/w Arms Act with S. 63 of the Army Act.
Neglect in control and disposal of ammunition amounts to act prejudicial to good order and discipline.
Modification of sentence from dismissal to compulsory retirement was proportionate and just.
No arbitrariness or illegality shown warranting interference under S. 30 of the 2007 Act.
2025 INSC 1215
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 628 OF 2016
S.K. JAIN … APPELLANT
Versus
UNION OF INDIA & ANR. … RESPONDENTS
J U D G M E N T
ALOK ARADHE, J.
1. This appeal is directed against impugned judgement dated
01.06.2012 and order dated 03.09.2012 passed in O.A. No.
445 of 2010 and R.A. No. 34 of 2012 by Armed
Forces Tribunal (hereinafter referred to as “Tribunal”). The
Tribunal by impugned judgment dated 01.06.2012
substituted conviction of appellant in respect of charge for
alleged possession of ammunition and held him guilty of an
act prejudicial to good order and discipline. The Tribunal
convicted the appellant under Section 63 of the Army Act,
1950 (hereinafter referred to as the “1950 Act”). The Tribunal
by the impugned order dated 03.09.2012, dismissed the
petition for review filed by the appellant.
2
2. In order to appreciate the challenge of the appellant to the
impugned judgment and order, relevant facts need mention,
which are set out as under.
(I) FACTS
3. The appellant was commissioned into Army Ordnance Corps
of Indian Army. He was, on 27.08.2006, promoted as Colonel
(Selection Grade) and was posted as Commandant of
Northern Command Vehicle Depot, (NCVD) Udhampur. The
appellant was handling motorcycles (Royal Enfield) intake in
the command after the inspection test. One Shri Sumesh
Magotra, a contractor from M/s Vivek Motors, Udhampur,
(complainant) met the appellant on 17.09.2008 in NCVD. The
appellant demanded Rs.100/- per motorcycle for passing the
same in the inspection test. The complainant after four days
met Commanding Officer of Northern Command, Counter
Intelligence Unit, and explained the difficulty faced by him.
Thereafter, the complainant again met the aforesaid
Commanding Officer between 20th to 23rd September, 2008
wherein he again narrated the harassment faced by him. The
complaint disclosed to the Commanding Officer that he was
under pressure to make a payment of Rs.10,000/- in cash to
the appellant and was due to make payment on 27.09.2008.
The complainant thereupon made photocopies of twenty
currency notes of Rs.100/- denomination each which were
included in hundred numbers of Rs.100/- denomination
currency notes.
3
4. The complainant on 27.09.2008 between 10.00 AM to 10.15
AM went to office of NCVD where he handed over an envelope
containing currency notes of Rs.10,000/-. A search was
carried out by Board of Officers and during the search, the
appellant was given an offer to frisk and search the Board of
Officers team, which he declined. In the search, a white
envelope containing hundred numbers of Rs.100/-
denomination notes was found by Havildar D.K. Singh, which
was kept under the computer table in the office of the
appellant. The Board of Officers also found a sum of
Rs.28,000/- kept in the briefcase of the appellant which was
also kept in the office. The Board of Officers further found
ammunition from the possession of the appellant. An
investigation was carried out wherein a prima facie case was
found against the appellant. He was thereafter arrested.
(a) The Charges
5. The appellant was tried by a General Court Martial (GCM).
The proceeding before the GCM commenced on 18.12.2008
and concluded on 26.03.2009. The appellant was tried for the
following three charges :-
“(a) First Charge : Under Army Act Section 69,
“Committing a civil offence, that is to say
criminal misconduct contrary to Section 5(2) of
Prevention of Corruption Act. 2006 (J&K) (Act
No. XIII of 2006 Samvat). In that he, while
performing the duties of Commandant.
Northern Command Vehicle Depot, on
27.09.2008 the applicant abused his position
as a Public Servant and obtained for himself a
sum of Rs.10,000/- from Shri Sumesh Magotra.
4
(b) Second Charge : Under Army Act Section 69,
“Committing a civil offence, that is to say being
in possession of ammunition in contravention of
Section 3 of the Arms Act 1959, contrary to
Section 25(1-B) of the Arms Act, 1959. In that
he, on 27.09.2008, the applicant was found in
possession of the following ammunition without
any authority.
Description of Lot No. Qty
Ammunition
7.62 mm SLR 8096 OFV 04 rounds
8092 OFV 01 rounds
9 mm ZZ 16 KF 03 rounds
(c) Third Charge : Under Section 63 of the Army
Act “an act prejudicial to good order and military
discipline for being in possession of cash
amounting to Rs.28,000/- without any
satisfactory explanation”. In that he, while
performing his duties as Commandant,
Northern Command Vehicle Depot, a sum of
Rs.28,000/- was found in the possession of the
applicant on 27.09.2008 without any
satisfactory explanation.”
(b) Order of GCM
6. The GCM by an order dated 26.03.2009 inter alia found the
appellant guilty of charge No. 1 (corruption) and charge No. 2
(ammunition). However, the appellant was acquitted in
respect of charge No. 3 (cash). The appellant was convicted
and sentenced with a penalty of dismissal from service. The
pre-confirmation petition filed by the appellant was rejected
on 04.06.2009 by the Lieutenant General, General Officer
Commanding-in-Chief Northern Command. The appellant
filed a post-confirmation petition before the Union of India.
5
The same was not decided within the statutory period of 30
days.
7. The appellant thereupon filed an original application in the
O.A. No.157 of 2009 before the Tribunal. The Tribunal by an
order dated 03.05.2010 directed Union of India to decide the
post-confirmation petition filed by the appellant within a
period of 45 days. The Tribunal granted the liberty to the
appellant to approach the Tribunal in case the aforesaid
petition was not decided. The Union of India failed to comply
with the direction issued vide order dated 03.05.2010 passed
by the Tribunal in O.A. No 157 of 2009.
8. The appellant thereafter filed another original application on
26.07.2010 namely, O.A. No.445 of 2010 before the Tribunal.
The appellant in the said O.A. challenged the order dated
26.03.2009 passed by GCM, as well order dated 04.06.2009
by which his pre-confirmation petition was dismissed. The
appellant sought reinstatement. During the pendency of the
aforesaid original application, the Union of India by an order
dated 09.11.2010 dismissed the post-confirmation petition
filed by the appellant.
(c) The Judgment of Tribunal
9. The Tribunal vide judgment dated 01.06.2012, inter alia,
held that there was no evidence to prove the demand or
acceptance of bribe. Therefore, charge No.1 (corruption) was
held to be not proved. The Tribunal further held that
6
conviction of the appellant under the Arms Act is not
sustainable as the evidence did not support possession of
ammunition without license. The Tribunal, however, invoked
Section 15 of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as “2007 Act”) and Rule 62 (4) of the
Army Rules (hereinafter referred to as the “Rules”) and
substituted the finding on the same charge and held the
appellant guilty under Section 63 of the 1950 Act i.e. an act
prejudicial to good order and discipline. The Tribunal on
charge No. 3 (cash) affirmed the findings of GCM and upheld
the acquittal of the appellant. The Tribunal modified the
punishment of dismissal to that of compulsory retirement
with all pensionary and retiral benefits. The Tribunal further
directed that order be complied within 120 days failing which
an amount of 12% will be levied on the sum due, till the date
of payment. Accordingly, the original application preferred by
the appellant was partly allowed.
10. The Union of India sought leave to appeal. The said
application filed by the Union of India was dismissed on
09.07.2012 by the Tribunal. The appellant filed an
application seeking review of the order dated 01.06.2012
passed by the Tribunal, in so far as the Tribunal upheld the
substitution of conviction under Section 63 of the 1950 Act
in relation to charge No.2 and in so far as it imposed the
punishment of compulsory retirement on the appellant. The
Tribunal by an order dated 03.09.2012 dismissed the review
application. The Union of India filed Civil Appeal (D) No. 9035
7
of 2013. The aforesaid appeal was dismissed on 06.05.2013.
However, the question of law was kept open.
11. The respondents implemented the judgment dated
01.06.2012 of the Tribunal, on 15.05.2013. The appellant on
22.06.2013 accepted the retiral benefits under protest and
without prejudice to his rights.
12. The appellant filed a writ petition namely, W.P.(C) No.4064
of 2014 before the Delhi High Court against the judgment
dated 01.06.2012 passed by the Tribunal, in so far as it
relates to substitution of conviction under Section 63 of the
1950 Act in relation to charge No. 2 and imposition of
punishment of compulsory retirement of the appellant. The
High Court by an order dated 20.03.2015, disposed of the
writ petition with the liberty to take recourse of the remedy
referred to by this Court in para 39 of its decision in Union
of India & Ors. v. Major General Shri Kant Sharma & Anr.1
.
The appellant filed a Review Petition seeking review of the
order dated 20.03.2015. The said Review Petition was
dismissed on 03.07.2015 by the High Court.
13. The appellant thereupon filed a miscellaneous application
namely, M.A. No. 25 of 2016 before the Tribunal, along with
an application for condonation of delay. In the aforesaid
miscellaneous application leave to appeal was sought under
Section 31 of the 2007Act. The Tribunal by an order
dated19.02.2016 granted the appellant leave to appeal on the
1
(2015) 6 SCC 773
8
ground that case raised substantial questions of law of
general public importance. The appellant thereupon has filed
this appeal against judgment dated 01.06.2012 and order
dated 03.09.2012 passed by the Tribunal. In the aforesaid
factual background, this appeal arises for our consideration.
(II) SUBMISSIONS OF APPELLANT
14. Learned counsel for the appellant submitted that even
though the Tribunal has found that appellant is not guilty
under Section 3 and Section 25 (1-B) of the Arms Act, 1959
i.e. he was not found in possession of the ammunition as
described under the Arms Act, yet it erroneously held that
appellant is guilty of an act prejudicial to good order and
military discipline under Section 63 of the 1950 Act. It is
further submitted on the basis of material on record that the
appellant could not be held guilty of any conduct contrary to
military discipline and good order. It is contended that
Tribunal grossly erred in imposing the punishment of
compulsory retirement on the appellant which even otherwise
is grossly disproportionate to the alleged misconduct. It is
also urged that the Tribunal erred in dismissing the
application seeking review of the judgment dated 01.06.2012.
It is submitted that the impugned orders dated 01.06.2012
and 03.09.2012 in so far it upheld the substitution of
conviction under Section 63 of the 1950 Act in relation to
charge No.2 and imposition of punishment of compulsory
retirement on the appellant, is liable to be quashed and set
9
aside. However, it is pointed out that appellant has already
attained the age of superannuation.
(III) SUBMISSION OF RESPONDENTS
15. On the other hand, learned counsel for respondents
submitted that Tribunal has not committed any error in
applying Rule 62(4) of the Rules. It is contended that
appellant was found in possession of ammunition
unauthorisedly therefore he has rightly been convicted. It is
further contended that substitution of finding is legally
permissible under Section 15 of the 2007 Act, as the Tribunal
is vested with the same power as GCM. It is also submitted
that Tribunal has imposed the punishment of compulsory
retirement which is proportionate to the gravity of offence
committed by the appellant. It is therefore, prayed that
appeal be dismissed.
(IV) CONSIDERATION
16. We have considered the rival submissions made on behalf
of the parties and perused the record as well as the written
submission filed on behalf of the parties.
(V) RELEVANT STATUTORY PROVISIONS
17. At this stage, it is apposite to take note of the relevant
statutory provisions. The 1950 Act is an Act to consolidate
and amend the law relating to government of the regular
Army. Section 3(ii) defines the expression “civil offence” to
10
mean an offence which is triable by a criminal court. Chapter
IV of the 1950 Act deals with conditions of service, whereas
Chapter V deals with service privileges, Chapter VI of the
1950 Act deals with offences. Section 59 of the 1950 Act
prescribes the offences relating to Court Martial, Section 63
deals with good order and discipline whereas Section 69 of
the 1950 Act deals with civil offences. Section 70 of the 1950
Act provides that civil offences are not triable by Court
Martial. Sections 63 and 69 and 70 of the 1950 Act, which
are relevant for the purposes of the controversy involved in
the instant appeal, are extracted below for the facility of
reference :-
“63.Violation of good order and
discipline.---Any person subject to this
Act who is guilty of any act or omission
which, though not specified in this Act,
is prejudicial to good order and military
discipline shall, on conviction by courtmartial, be liable to suffer imprisonment
for a term which may extend to seven
years of such less punishment as is in
this Act mentioned.
XXX XXX
69. Civil offences. --Subject to the
provisions of section 70, any person
subject to this Act who at any place in or
beyond India commits any civil offence,
shall be deemed to be guilty of an offence
against this Act and, if charged
therewith under this section, shall be
liable to be tried by a court-martial and,
on conviction, be punishable as follows,
that is to say,--
(a) if the offence is one which would
be punishable under any law in force
11
in India with death or with
transportation, he shall be liable to
suffer any punishment, other than
whipping, assigned for the offence, by
the aforesaid law and such less
punishment as is in this Act
mentioned; and
(b) in any other case, he shall be
liable to suffer any punishment, other
than whipping, assigned for the
offence by the law in force in India, or
imprisonment for a term which may
extend to seven years, or such less
punishment as is in this Act
mentioned.
70.Civil offences not triable by courtmartial,-- A person subject to this Act who
commits an offence of murder against a
person not subject to military, naval or air
force law, or of culpable homicide not
amounting to murder against such a person
or of rape in relation to such a person, shall
not be deemed to be guilty of an offence
against this Act and shall not be tried by a
court-martial, unless he commits any of the
said offences--
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the
Central Government by notification in
this behalf.”
(VI) ANALYSIS
18. From careful perusal of Sections 69 and 70 of 1950 Act, it
is evident that Section 69 which deals with civil offences is
subject to provisions of Section 70 and provides that if any
12
person subject to provisions of this Act commits any civil
offence, shall be deemed to be guilty of an offence under this
Act and shall be charged under this Act and if charged under
Section 69, shall be liable to be tried by Court Martial and
shall, on conviction, be punishable with the sentence
provided in Clauses (a) and (b) of Section 69 of the 1950 Act.
Thus, Section 69 creates a legal fiction in so far as it pertains
to commission of any civil offence by a person subject to
provisions of the Act and provides that he shall be deemed to
be guilty of an offence under the Act.
19. From careful scrutiny of Section 63 of the 1950 Act, it is
axiomatic that the same applies to an act or omission which
is not specified in the Act but is prejudicial to good order and
military discipline. Thus, Section 63 applies to an act or
omission which is not specified in the 1950 Act.
20. Now we may advert to 2007 Act. Section 15 of the 2007 Act
deals with jurisdiction, powers and authority in the matters
of appeal against Court Martial. Section 15(4) provides that
Tribunal, in case it finds (i) finding of the Court Martial is
legally not sustainable for any reason whatsoever (ii) findings
involves wrong decision on the question of law (iii) there was
material irregularity in the course of trial resulting in
miscarriage of justice, shall allow an appeal against
conviction by a Court Martial. The first proviso to Section
15(4) provides that Tribunal may dismiss the appeal where it
considers that no miscarriage of justice is likely to be caused
13
or actually has resulted to the appellant. Section 15(6)(a) &
(b) of the 2007 Act, which is relevant as reproduced below :-
“15. Jurisdiction, powers and authority in
matters of appeal against court martial :-
(6) Notwithstanding anything contained in
the foregoing provisions of this section, the
Tribunal shall have the power to—
(a) substitute for the findings of the court
martial, a finding of guilty for any other
offence for which the offender could have
been lawfully found guilty by the court
martial and pass a sentence afresh for the
offence specified or involved in such
findings under the provisions of the Army
Act, 1950 (46 of 1950) or the Navy Act,
1957 (62 of 1957) or the Air Force Act,
1950 (45 of 1950), as the case may be; or
(b) if sentence is found to be excessive,
illegal or unjust, the Tribunal may—
(i) remit the whole or any part of the
sentence, with or without conditions;
(ii) mitigate the punishment
awarded;
(iii) commute such punishment to
any lesser punishment or
punishments mentioned in the Army
Act, 1950 (46 of 1950), the Navy Act,
1957 (62 of 1957) and the Air Force
Act, 1950 (45 of 1950), as the case may
be”.
21. Thus, under Section 15(6) (a) & (b) of the 2007 Act, the
Tribunal is empowered to substitute the finding of Court
Martial which includes the disciplinary proceedings under
14
the Act and also to interfere with the sentence if the same is
found to be excessive, illegal or unjust and to mitigate the
punishment awarded. The power under Section 15(6) (a) & (b)
of the 2007 Act can be exercised only if following two
conditions are fulfilled :-
(i) The accused could have been
lawfully found guilty of the substituted
offence by the original court-martial
based on the evidence presented
during the trial.
(ii) The tribunal may also pass a new
sentence for the substituted offence.
22. It is noteworthy that Section 15(6) of the 2007 Act is in pari
materia with Section 162 of the 1950 Act and is akin to
Section 222 of Code of Criminal Procedure 1973 which
permits conviction for a lesser or cognate offence on the same
set of facts. The legislative intent appears to be unambiguous.
The object of Section 15(6) of 2007 Act is that where the
evidence sustains a different, though related offence, the
appellate forum is not denuded of power to render a lawful
finding merely because the chargesheet mentions another
provision.
23. The scope of interference in an appeal under Section 30 of
the 2007 Act is well settled. This Court in appellate
jurisdiction under Section 30 of the 2007 Act would be slow
in interfering with the substituted punishment, unless the
order passed by the Tribunal is found to be arbitrary,
15
unreasonable or capricious. (See : Union of India & Ors. v.
R. Karthik2
).
24. In the backdrop of aforesaid statutory provisions and scope
of interference in an appeal under Section 30 of the 2007 Act,
we may advert to the facts of the case in hand. The appellant,
at the relevant time, was posted as Commandant of NCVD,
Udhampur. He was tried by GCM on three charges namely,
(i) civil offence under Section 5(2) of J&K Prevention of
Corruption Act, 2006 read with Section 69 of the 1950 Act
i.e. with regard to alleged acceptance of Rs.10,000/- from
complainant Shri Sumesh Magotra (ii) civil offence under
Section 3 of Arms Act, 1959 read with Section 25(1B) and
Section 69 of the 1950 Act i.e. with regard to alleged
possession of ammunition -7.62 mm SLR -5 rounds and 9
mm Ball-3 rounds and (iii) act prejudicial to good order and
military discipline under Section 63 of the Act i.e. with regard
to unexplained possession of Rs. 28,000/-. The GCM vide
finding and sentence dated 26.03.2009 found the appellant
guilty of charge Nos. 1 and 2. However, the appellant was
acquitted of charge No.3. The GCM while dealing with charge
No.2, took into account the statements of prosecution
witnesses namely, Col. S.A. Kulkarni (PW-1), Col. V.K.
Bahuguna (PW-3), PW-10 and Lt. Col. Avinash Thakur (PW11) and held that aforesaid statements of witnesses establish
the recovery of carton of ammunition from steel chest located
in the office of the appellant. The Board of Officers
2
(2020) 2 SCC 782
16
documented the recovery of three round 9 mm ball
ammunition and 7.62 mm ball ammunition. Material exhibit
(ME-2) produced before the GCM tallied with the details. The
GCM also noted that an expert witness namely, Major S.B.
Mishra (PW-13) corroborated the presence of ammunition.
The GCM, on the basis of evidence of aforesaid witnesses,
material exhibit (ME-2) and the opinion of the expert as well
as the appellant’s own explanation that the ammunition had
been there for long, concluded that the possession of
ammunition without license stood proved and therefore the
appellant was found guilty of charge No.2 framed under
Section 69 of the 1950 Act read with Arms Act, 1959.
25. The Tribunal vide judgment 01.06.2012, inter alia held
that there is no evidence to prove charge No.1. The Tribunal
upheld the finding of acquittal of the GCM in respect of
charge No.3. The Tribunal in respect of charge No.2, which
related to recovery of ammunition from the appellant, held
that the same was identified as old vintage stock and was
found in the drawer of the office of the appellant. The
Tribunal on perusal of expert evidence held that though
ammunition was aged and potentially not hazardous but was
still capable of discharge. The Tribunal, however, found that
there was no evidence of motive or of unlawful purpose
attributable to the appellant. The recovery of old ammunition
is indicative of neglect and failure to adhere to standing
instructions governing disposal of surplus or aged
ammunition. It was further held that strict application of
17
Arms Act via Section 69 of the 1950 Act was inappropriate
and the facts established, supported culpability of the
appellant under Section 63 of the 1950 Act, an act prejudicial
to good order and military discipline reflecting the failure on
the part of appellant to follow mandatory procedure for
disposal and accounting of old ammunition. The Tribunal,
therefore, set aside the conviction under Section 69 of the
1950 Act and substituted the conviction of the appellant with
Section 63 of the 1950 Act. The Tribunal therefore,
substituted the penalty of dismissal from service to
compulsory retirement with all retiral benefits.
26. The concurrent findings of fact with regard to recovery of
ammunition from the possession of the appellant, have been
recorded after meticulous appreciation of evidence on record.
The witnesses namely, PW-1, PW-3 and PW-10 and PW-11
have established the recovery of carton of ammunition from
the office of the appellant. The material exhibit (ME-2) also
proves the factum recovery of ammunition from appellant.
The expert witness namely, Sep. S. Nayak (PW-9) has also
found that ammunition was capable of discharge. The
appellant in his statement also did not dispute the recovery
of ammunition. It is noteworthy that the aforesaid findings of
fact which are concurrent in nature have not been assailed
before us on the ground that same are perverse. The factual
foundation brought on record at the trial, clearly discloses an
act or omission on the part of the appellant which is
prejudicial to good order and military discipline. The twin
18
condition for invocation of Section 63 of the 1950 Act referred
to supra are fulfilled in the instant case. The appellant on the
basis of the facts proved, could lawfully have been convicted
under Section 63 of the 1950 Act.
(VII) CONCLUSION
27. The scope of interference in an appeal with the order passed
by the Tribunal is limited. This Court in appellate jurisdiction
would interfere if the order is shown to be arbitrary,
unreasonable or capricious. The Tribunal under Section 15(6)
of the 2007 Act, which contains a non-obstante clause, has
power to substitute the finding of Court Martial, a finding of
guilty of any other offence for which offender could have been
lawfully found guilty by Court Martial and may pass a
sentence afresh. In the instant case, the Tribunal in exercise
of its power under Section 15(6) of 2007 Act, on the
established fact of recovery of ammunition from the
possession of the appellant, has taken a lenient view in favour
of the appellant and has modified the punishment from
dismissal to compulsory retirement with all pensionary and
retiral benefits. The Tribunal has exercised its discretion
under Section 15(6) of the 2007 Act in a manner which is
both just and proportionate, balancing the disciplinary needs
of service with fairness to the individual. The Tribunal has
acted strictly within the statutory framework. The aforesaid
exercise of discretion, therefore, does not call for any
interference in this appeal. The Tribunal did not commit any
error in rejecting the petition for review filed by the appellant.
19
28. For the aforementioned reasons, we do not find any merit
in this appeal. In the result, same fails and is hereby
dismissed.
……………….……………J.
[J.B. PARDIWALA]
...………………………….J.
[ALOK ARADHE]
NEW DELHI,
OCTOBER 10, 2025.
