IMPORTANT POINTS
When the possession of phone no. from which obscene calls were made; receiving the calls by victim ladies; and calls having been made from the alleged phone are proved the accused is guilty of the offence/misconduct.
Non-production of certificate u/s 65B initially is a curable defect.

Headnote:(a) Navy Act, 1957 – Section 77(2) and Sections 58, 74 and 48(c) r/w Section 509, Indian Penal Code, 1860 – Making obscene calls – Prosecution successfully proving that respondent possessed the SIM card in question at relevant time – Prosecution also establishing that obscene calls were made to the landline numbers of the three ladies on the dates mentioned – Prosecution also establishing that the calls originated from Mobile No. 9564784782 belonging to respondent – No infirmity in decision of AFT. (Para 14, 15, 16)
       (b) Indian Evidence Act, 1872 – Section 65B – Certificate – Non-production initially – Curable defect – Could be cured subsequently. (Para 18)
       (2017) 8 SCC 570 – Relied upon
       (1997) 4 SCC 741 – Referred
       (2018) 2 SCC 801 – Distinguished
       (c) Navy Act, 1957 – Sections 30 and 31 – Appeal to Supreme Court – Limited scope – Court Martial finding respondent guilty – AFT also approving after recording the evidence and detailed analyses thereof – Supreme not supposed to revisit the entire evidence to find out correctness of finding of the authorities below – Moreover, appeal before Supreme Court should be limited to questions of law. (Para 25, 26)
       Facts of the case:
       The respondent was served with charge-sheet containing ten charges which led to the court martial proceedings against him. Court Martial returned the finding of ‘guilty’ on all charges which led to imposition of sentence of dismissal from the naval service as well as forfeiture of 24 calender months of seniority.
       The AFT set aside the finding of ‘guilty’ in respect of three charges (8th, 9th and 10th charges) on the ground of misjoinder of charges holding that it had no connection with charges 1 to 7. However, in respect of charges 1 to 7, the AFT maintained that the appellant could successfully prove these charges by cogent evidence. 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. It has, accordingly, directed the appellants to reinstate the respondent in naval service without payment of any salary for the intervening period, i.e., the back wages.
       Finding of the Court:
       There is no infirmity in the findings of the AFT.
       Result: Appeals dismissed.

JUDGMENT

A.K. SIKRI, J.

These two are cross appeals filed by both the parties to the lis. On the one hand is the Union of India, along with the Chief of Naval Staff as well as the Flag Officer, Commanding-in-Chief, Headquarters, Western Naval Command (hereinafter referred to as 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 served with charge-sheet containing ten charges which led to the court martial proceedings against him. Court Martial returned the finding of ‘guilty’ on all charges which led to imposition of sentence of dismissal from the naval service as well as forfeiture of 24 calender months of seniority. After exhausting departmental remedies, the respondent challenged its conviction before the Armed Forces Tribunal (for short, ‘AFT’). Finding certain reasons stated at the appropriate stage, the AFT decided to itself record the evidence on those charges by giving opportunities to both the parties. On the basis of evidence produced before the AFT, the AFT set aside the finding of ‘guilty’ in respect of three charges (8th, 9th and 10th charges) on the ground of misjoinder of charges holding that it had no connection with charges 1 to 7. However, in respect of charges 1 to 7, the AFT maintained that the appellant could successfully prove these charges by cogent evidence. The AFT, thereafter, proceeded to consider the quantum of punishment and came to the conclusion that the punishment of a ‘dismissal from service’ is disproportionate to the nature of charges. It also observed that when the respondent had been awarded the punishment of ‘dismissal from service’, second punishment, namely, forfeiture of seniority for 24 months did not make any sense. On these grounds, 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. It has, accordingly, directed the appellants to reinstate the respondent in naval service without payment of any salary for the intervening period, i.e., the back wages. Both the parties feel aggrieved by this judgment. In the first instance, they moved application before the AFT seeking leave to appeal. The AFT declined this request stating that no question of law of public importance is involved. This is the reason for both the parties to approach this Court. These appeals were clubbed together. In the appeal, filed by the respondent while issuing notice, operation of the order of the AFT was also stayed. As a result, the respondent has not been allowed to join back the service. Both these appeals were admitted formally on July 01, 2016 and direction was given to expedite the hearing. It was also directed that interim order shall continue to operate. This is how the appeals have come up for final hearing in which both the sides were heard at length.

3. With the aforesaid introductory remarks, we now proceed to narrate the factual matrix of the case in some more detail. The respondent was 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 INS Mahish at Port Blair in Andaman Island. His aforesaid posting was from May, 2010 to June, 2011. In June, 2011, he was transferred to INS Viraat as Commander Operations vide orders dated June 02, 2011. In obedience to the said orders, the respondent along with his wife and daughters left for Mumbai on June 15, 2011. The respondent joined duties at the transferred place with 10 days’ leave/joining time. He had undertaken the aforesaid journey from Port Blair to Mumbai by Indian Airlines. According to him, on reaching Mumbai he stayed with his sister-in-law Amita Gavankar at Goregaon, Mumbai as he was on leave till June 25, 201

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2018 Supreme(SC) 360

SUPREME COURT OF INDIAA.K. SIKRI, ASHOK BHUSHAN, JJ.UNION OF INDIA & ORS. – APPELLANT(S) VERSUS CDR. RAVINDRA V. DESAI – RESPONDENT(S) CRIMINAL APPEAL NO. 579 OF 2016 WITH CRIMINAL APPEAL NO. 574 OF 2016 Decided On : 18-04-2018

Cases Referred (3)

SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
UNION OF INDIA & ORS. – APPELLANT(S)
VERSUS
CDR. RAVINDRA V. DESAI – RESPONDENT(S)
CRIMINAL APPEAL NO. 579 OF 2016 WITH CRIMINAL APPEAL NO. 574 OF 2016
Decided On : 18-04-2018