Union Of India vs Major R. Metri No. Mr 08585N

order dated 2nd March, 2017, of the learned AFT, vide which the

learned AFT, while setting aside the order of conviction, under

Section 7 of the Prevention of Corruption Act, 1988 (hereinafter

referred to as “the P.C. Act”) read with Section 69 of the Army

Act, 1950 (hereinafter referred to as “the Army Act”) and the

sentence of cashiering from service and suffering of rigorous

imprisonment for one year, dated 28 th April, 2013 passed by the

General Court Martial (hereinafter referred to as “GCM”), has

convicted the respondent­Major R. Metri (appellant in

connected appeals being Criminal Appeal Nos.537­538 of 2018)

[hereinafter referred to as “the respondent­officer”] under

Section 63 of the Army Act, and in turn, sentenced him to

punishment of forfeiture of seniority of rank of Major and of

severe reprimand. The learned AFT has also directed that the

respondent­officer be reinstated in service, with no pay and

2 allowance for the period he remained out of service, but,

without any service break.

3. Criminal Appeal Nos. 537­538 of 2018 have been filed by

the respondent­officer, aggrieved by that part of the said

judgment and order of the learned AFT, convicting him for

offence punishable under Section 63 of the Army Act and

sentencing him to punishment of forfeiture of seniority of rank

and of severe reprimand.

4. The facts necessary for adjudication of the present appeals

are as under:

5. For the sake of convenience, the parties are referred to

hereunder as are found in Criminal Appeal No. 2196 of 2017.

6. In the year 2008, the respondent­officer was posted as the

Recruiting Medical Officer, Army Recruiting Office, Jhunjhunu,

Rajasthan. At the relevant time, P.W.1­Col. Anil Singh Rathore

3 was the Director of the Army Recruiting Office, Jhunjhunu,

Rajasthan.

7. Between 16th December, 2008 and 18th December, 2008,

an Army Recruitment Rally took place in Udaipur. According to

the prosecution, P.W.8­Major BSRK Prasad as well as P.W.12­

Major D. Srinivas, who were also working as Recruiting Medical

Officers, contacted the respondent­officer and told him that

they help the candidates by making them medically fit and

asked his help for clearing certain candidates by declaring them

medically fit. It is the case of the prosecution that, though, at

first, the respondent­officer was reluctant, at the insistence of

P.W.8­Major BSRK Prasad, he helped clearing certain

candidates within acceptable range.

8. It is further the prosecution case that when the

respondent­officer went to his native place at Dharwad on 28 th

December, 2008, he was informed by P.W.8­Major BSRK

Prasad that an amount of Rs.65,000/­ would be paid to him

4 towards his share. It is further the prosecution case that the

respondent­officer asked P.W.8­Major BSRK Prasad that the

said amount be deposited in the account of his father­in­law.

Accordingly, an amount of Rs.65,000/­ was deposited in the

account of the father­in­law of the respondent­officer.

9. It is the further case of the prosecution that there was

another Recruitment Rally in Dausa in January, 2009. In the

said rally, P.W.12­Major D. Srinivas requested the respondent­

officer to help some candidates and the respondent­officer,

though reluctant, helped in clearing some candidates within the

acceptable range. It is the prosecution case that the

respondent­officer’s wife delivered a baby girl on 16 th February,

2009, and as such, the respondent­officer wanted to

immediately rush to his native place. Since he was not having

sufficient funds to buy an air­ticket, he requested P.W.12­Major

D. Srinivas to lend an amount of Rs. 20,000/­. The said

amount of Rs.20,000/­ was deposited in the account of the

5 respondent­officer by P.W.10­Varalakshmi Srinivas, i.e., the

wife of P.W.12­Major D. Srinivas. It is the case of the

prosecution that P.W.12­Major D. Srinivas told the respondent­

officer that the said amount of Rs.20,000/­ was towards his

share for helping the candidates in Dausa Recruitment Rally.

10. It is further the case of the prosecution that there were

also Recruitment Rallies in Jodhpur and Ganganagar in May,

2009 and June, 2009 respectively. It is the allegation that in

the said rallies also, certain malpractices of clearing some

candidates as medically fit, who were not otherwise fit, took

place.

11. It is further the prosecution case that in the month of

July, 2009, there was another Recruitment Rally at Ajmer. The

respondent­officer, along with P.W.1­Col. Anil Singh Rathore,

went to Ajmer to take part in the said Recruitment Rally. When

the Recruitment process was going on at Ajmer, a First

Information Report (hereinafter referred to as “FIR”) No.125 of

6 2009, came to be registered in Police Station Adarsh Nagar,

Ajmer on 11th July, 2009, at the instance of one Narendra

Singh, under Sections 406 and 420 of the Indian Penal Code,

1860 (hereinafter referred to as “IPC”), complaining about the

malpractices in the Army Recruitment Rally. P.W.6­ Mohd.

Anwar Khan, Circle Inspector, took up the investigation and

arrested 10 persons, who were alleged to be touts.

12. It is the prosecution case that on 13 th July, 2009, certain

reports were published in Media at Ajmer. In the media

reports, the name of three officers, namely, (1) the respondent­

officer; (2) P.W.8­Major BSRK Prasad; and (3) P.W.12­Major D.

Srinivas and three Junior Commissioned Officers, namely, (1)

Subedar Major VP Singh; (2) Subedar Surjan Singh and (3)

Subedar Major Jaswant Singh were mentioned.

13. It is the case of the prosecution that, on 14 th July, 2009,

in the evening, the respondent­officer went to P.W.1­Col. Anil

Singh Rathore. They had gone to a nearby temple and on the

7 stairs of the temple, the respondent­officer confessed about his

involvement. P.W.1­Col. Anil Singh Rathore asked the

respondent­officer to give his confession in writing. It is further

the case of the prosecution that the respondent­officer initially

came with a draft confession on 15 th July, 2009, on which,

P.W.1­Col. Anil Singh Rathore told him that there was no need

for him to see the draft and he should submit a final statement.

Accordingly, on the same day, at around 8.00 p.m., the

respondent­officer gave a written statement to P.W.1­ Col. Anil

Singh Rathore in the presence of P.W. 3­ Col. Bharat Kumar

and P.W.4­Col. Balraj Singh Sohi. On 16th July, 2009, the

Office of Superintendent of Police sought the presence of the

respondent­officer to interrogate him and others in the FIR in

question. The statement of the respondent­officer was recorded

by the Police on 18th July, 2009.

14. On 14th December, 2009, the Court of Inquiry proceedings

were convened. The General Officer in Commanding

8 (hereinafter referred to as “GOC”), South West Command, vide

Note dated 14th December, 2009, directed disciplinary action to

be taken against the respondent­officer and two other officers,

namely P.W.12­Major D. Srinivas and P.W.8­Major BSRK

Prasad and three Junior Commissioned Officers.

15. The respondent­officer and others challenged the Court of

Inquiry proceedings by way of Original Applications before the

learned AFT, Jaipur. The same were rejected by the learned

AFT, Jaipur, vide order dated 9th April, 2010.

16. The GCM proceedings were ordered to be instituted

against the respondent­officer and five others on 28 th June,

2012, on the following Charges:

"a) Charge No.1:

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 an

9 official act, contrary to section 7 of Prevention of Corruption Act 1988.

In that he

At Dharwad during January 2009, which came to the knowledge of authority competent to initiate action on 14 Dec 2009, while performing the duties of Recruiting Medical Officer Jhunjhunu, being a public servant, obtained Rs.65000/­ from MR­08309 L Major BSRK Prasad as a reward of his share for helping the candidates for recruitment in 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 gratification other than legal remuneration as a reward for doing an official act, contrary to Section 7 of Prevention of Corruption Act 1988.

In that he

At Dharwad during Feb 2009, which came to the knowledge of authority competent to initiate action on 14 Dec

10 2009, while performing the duties of Recruiting Medical Officer Army Recruiting Office Jhunjhunu, being a public servant, obtained Rs.20,000/­ from Mrs. Vara Laxmi wife of MR­08205 K Major D Srinivas as a reward of his share for helping the candidates for recruitment in the Army in Dausa rally.

(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 an official act, contrary to Section 7 of Prevention of Corruption Act 1988.

In that he

At Jodhpur, between January 2009 and April 2009, which came to the knowledge of authority competent to initiate action, on 14 Dec 2009, while performing the duties of Recruiting Medical Officer, Army Recruiting Office Jhunjhunu, being a public servant obtained SIM No.9784341343 from Mr. Taru Lai, as a motive for helping his

11 candidates for recruitment in the Army."

17. At the conclusion of the trial, the GCM found the

respondent­officer guilty of charge Nos.1 and 2 and not guilty of

charge No.3. The GCM, therefore, vide order dated 28 th April,

2013, sentenced the respondent­officer to be cashiered from

service and to suffer rigorous imprisonment for one year. The

GOC confirmed the findings and sentence of the GCM, but

remitted the unexpired portion of the sentence of rigorous

imprisonment, vide order dated 29th December, 2013. Being

aggrieved thereby, the respondent­officer preferred an appeal

before the learned AFT by way of O.A. (Appeal) No.2 of 2014.

The same has been partly allowed by the impugned judgment

and order dated 2nd March, 2017, as aforesaid. Being aggrieved

thereby, the present appeals.

18. We have heard Shri Vikramjit Banerjee, learned Additional

Solicitor General (“ASG” for short), appearing on behalf of the

12 Union of India and others and Shri Gaurav Agrawal, learned

counsel appearing on behalf of the respondent­officer.

19. Shri Vikramjit Banerjee, learned ASG, submits that the

scope of interference by the learned AFT under Section 15 of

the Armed Forces Tribunal Act, 2007 (hereinafter referred to as

“the AFT Act”) is very limited. He submitted that the

reappreciation of evidence by the learned AFT is not

permissible. It is submitted that the interference by the learned

AFT would be warranted only on three grounds, as is

mentioned under sub­section (4) of Section 15 of the AFT Act.

In this respect, reliance is placed on the judgment of this Court

in the case of Union of India and others vs. Sandeep Kumar

and others1.

20. Shri Banerjee further submitted that the learned AFT has

grossly erred in holding that the confessional statement made

by the respondent­officer was not voluntary. It is submitted 1 (2019) 10 SCC 496

13 that when the respondent­officer made the confessional

statement, he was not an accused, and as such, the learned

AFT has grossly erred in relying on Article 20(3) of the

Constitution of India. In this respect, he relies on the judgment

of Eleven­judge Bench of this Court in the case of The State of

Bombay vs. Kathi Kalu Oghad and others2.

21. Shri Banerjee further submits that the learned AFT itself

has come to a conclusion that the respondent­officer has

indulged in financial misconduct, and therefore, the

punishment of cashiering from service for such misconduct

ought not to have been sustained. Reliance in this respect is

placed on the judgment of this Court in the case of Chandra

Kumar Chopra vs. Union of India and others3.

22. Shri Gaurav Agrawal, learned counsel appearing on behalf

of the respondent­officer, on the contrary, submits that the

2 (1962) 3 SCR 10 3 (2012) 6 SCC 369

14 learned AFT has rightly held that the confessional statement

was not voluntary. He submitted that the extra­judicial

confession is a very weak piece of evidence and conviction on

the basis of the same cannot be sustained, unless there is some

corroboration. He submits that the news about the respondent­

officer being already involved in the FIR, registered on 11 th July,

2009, was already published in the newspapers on 13 th July,

2009. He submits that the Police had already started

interrogation with regard to the FIR and there was discussion

between the Police officials and the Army officials. He

submitted that the learned AFT has come to a conclusion that

it was a huge recruitment scam and in order to save the higher

officials, the possibility of the respondent­officer being forced to

give such a confession by promising him that he would also be

saved, is a possible view. He, therefore, submits that no

interference would be warranted with the findings of the

learned AFT in that regard.

15

23. He further submitted that even the evidence of P.W.1­Col.

Anil Singh Rathore, Director, Army Recruitment Centre,

Jhunjhunu; P.W.2­Brigadier Arun Kumar Tuli, Dy. Director

General, Recruitment Zone Rajasthan at Jaipur; and P.W. 4­

Col. Balraj Singh Sohi, Director Recruiting Office, Jaipur would

reveal that not a single person was found, who could be said to

have been medically declared fit, though being unfit. He

further submitted that, on the contrary, the evidence of the

prosecution witnesses would itself reveal that actual tests were

conducted by independent members and the medical team was

only assisting the independent members in the conduct of

tests, measurements and the medical examination. He further

submits that the evidence of prosecution witnesses would itself

show that there was no material to establish that the

respondent­officer had received any amount from the touts as a

consideration for clearing any candidate.

16

24. Shri Agrawal further submits that from the evidence of

P.W.10­Varalakshmi Srinivas, it is clear that the amount of

Rs.20,000/­ was deposited by her, on the directions of her

husband, P.W.12­Major D. Srinivas, since the respondent­

officer was in dire need of the said money as he had to rush to

his home­ town at Dharwad by flight. He submitted that from

the evidence of P.W.12­Major D. Srinivas, it would be clear that

the said amount of Rs.20,000/­ was returned by the

respondent­officer to P.W.12­Major D. Srinivas, on his return

from Dharwad.

25. Insofar as the amount of Rs.65,000/­ alleged to have been

received from P.W.8­Major BSRK Prasad is concerned, Shri

Agrawal would submit that P.W.8­Major BSRK Prasad had

taken a loan of Rs.65,000/­ from the father­in­law of the

respondent­officer, since he wanted to purchase a plot of land.

He submits that the amount of Rs.65,000/­ deposited in the

account of the father­in­law of the respondent­officer was

17 towards the repayment of the said loan. He submits that the

said fact would be evident from the evidence of P.W.8­Major

BSRK Prasad.

26. With the assistance of the learned counsel for the parties,

we have scrutinized the material on record. Insofar as the first

submission with regard to scope of Section 15 of the AFT Act is

concerned, it will be relevant to refer to sub­section (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 a court­martial where­

(a) the finding of the court­martial is legally not sustainable due to any reason whatsoever; or

18

(b) the finding involves wrong decision on a question of law; or

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

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

Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor 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 in interfering with the finding of the court­martial

where its finding is legally not sustainable due to any reason

whatsoever. Under clause (b) thereof, it would be permissible

for the learned AFT to interfere with such a finding when it

involves a wrong decision on a question of law. Under clause

(c) thereof, the learned AFT would be justified in allowing an

19 appeal against conviction by a court­martial when there was a

material irregularity in the course of the trial resulting in

miscarriage of justice.

28. Insofar as reliance placed by Shri Vikramjit Banerjee,

learned ASG on the judgment of this Court in the case of

Sandeep Kumar and others (supra) is concerned, this Court

in the said case itself has observed thus:

“46. Section 15 of the Act confers wide power on the Tribunal so as to allow an appeal against conviction by a court martial where the finding of the court martial is legally not sustainable due to any reason; the finding involves wrong decision on a question of law or there was a material irregularity in the course of the trial resulting in miscarriage of justice. Even though the power of the Tribunal is wide but it is not merely a different opinion on the appreciation of the evidence to interfere with the findings recorded by the court martial. The first ground of interference is whether the finding of the court martial is “legally not sustainable”. Therefore, to exercise such power, there has to be error of law by the court martial which would confer

20 jurisdiction on the Tribunal to interfere against the conviction recorded by the court martial. The second ground is “wrong application on a question of law”. However, the Tribunal, in the present case, has committed grave error in interfering with the finding of the court martial by misreading an Army Order. There is no material irregularity pointed out by the Tribunal inasmuch as the irregularity pointed out is with regard to confessional statements by military officer which is not a bar either under the Evidence Act or under the Army Order issued under the Act. The Tribunal could reappreciate evidence to find out if any findings 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 there was a material irregularity in the course of the trial resulting in miscarriage of justice. But such wide powers do not confer jurisdiction to the Tribunal to reverse the findings merely because it finds that different view is possible.”

29. It could thus be seen that this Court itself has held that

the learned AFT was entitled to reappreciate evidence to find

out if any findings of the court martial are legally not

21 sustainable due to any reason; or that the finding involves

wrong decision on a question of law; or there was a material

irregularity in the course of the trial resulting in miscarriage of

justice. We find that the reliance placed by the learned ASG on

the sentence, i.e., “But such wide powers do not confer

jurisdiction to the Tribunal to reverse the findings merely

because it finds that different view is possible”, is being pressed

into service without context. In the said case, on facts, this

Court came to the conclusion that there was no material

irregularity pointed out by the Tribunal inasmuch as the

irregularity pointed out was with regard to confessional

statements by military officer which was not a bar either under

the Evidence Act or under the Army Order issued under the

Act. This Court, therefore, came to a specific conclusion that

the finding recorded by the Tribunal was on misreading of an

Army order. The sentence which is pressed into service will

have to be read in the context of those findings. We are unable

22 to accept the contention urged on behalf of the Union of India

that the learned AFT is not entitled to reappreciate the

evidence. Such reappreciation of evidence is permissible to find

out if any findings of the court martial are legally not

sustainable due to any reason.

30. It is not in dispute that the GCM has passed its conviction

basically on the confessional statement made by the

respondent­officer. Reliance in this respect is placed on the

judgment of the Eleven­judge Bench of this Court in the case of

The State of Bombay vs. Kathi Kalu Oghad and others

(supra). It will be relevant to refer to the following observations

of this Court in the said case:

“(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself,

23 as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.”

31. It is to be noted that this Court, in the aforesaid case

itself, has held that the question, as to whether a person was

compelled to make a statement or not, is a question of fact in

each case to be determined by the Court on weighing the facts

and circumstances disclosed in the evidence before it.

32. In the present case, the learned AFT, upon perusal of the

evidence of P.W.1­ Col. Anil Singh Rathore, P.W.3­ Col. Bharat

Kumar and P.W.4­Col. Balraj Singh Sohi, has come to a

conclusion that from the circumstances as emerged, it cannot

be said that the confessional statement was voluntary.

24

33. The finding as recorded by the learned AFT, was recorded

while allowing the appeal preferred by the respondent­officer

against the judgment and order of the GCM dated 28 th April,

2013, as confirmed by the GOC vide order dated 29 th December,

2013, holding him guilty for the offence punishable under

Section 7 of the P.C. Act read with Section 69 of the Army Act.

As such, in the present matter, while considering the appeal of

the Union of India and others, we will be guided by the

parameters that weigh while considering an appeal against

acquittal. If the view taken by the learned AFT is found to be a

plausible one, it will not be permissible for this Court to

interfere with the same only 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 or impossible, an

interference would not be justified.

34. From the perusal of evidence of P.W.1­Col. Anil Singh

Rathore, it would reveal that he himself has stated that after he

25 was posted as Director, Army Recruiting Office, Jhunjhunu,

Rajasthan in May, 2008, he had received various calls from

unauthorized elements seeking favours for recruitment. He had

told them to lay off. However, in spite of this, the said callers

increased the frequency of making calls seeking favours and

also started using threatening language. He stated that the

issue was discussed in detail with all Directors of the Army

Recruiting Office under the zone. He stated that, in the

Conference, he had informed the Additional Director General

Recruiting, Integrated Headquarters of Ministry of Defence

(Army) that, though the recruiting system was free and fair, yet

about 90% of the persons recruited, pay varying amounts to the

touts. He further stated that in the month of May, 2009, when

the Recruitment Rally was held at Jodhpur, the respondent­

officer was detailed as a member of the medical team for the

said Recruitment Rally. When the Recruitment Rally was in

process, he received a call from the respondent­officer

26 informing him that the respondent­officer had received calls

from undesirable elements asking favours from the respondent­

officer. P.W.1­Col. Anil Singh Rathore has further stated that

he told the respondent­officer not to do any favour to anyone

and report the matter to the Director of Host Army Recruiting

Office, i.e., P.W.3­Col. Bharat Kumar.

35. P.W.1­Col. Anil Singh Rathore further stated in his

evidence that another Recruitment Rally was held in June 2009

at Ganganagar, where he was the Host Army Recruiting Office.

He had a meeting with Detachment Commander of South

Western Command Intelligence Unit, who provided him some

inputs about the touts’ activities in the area. He has stated in

his evidence that the respondent­officer was one of the

members of the medical team at the Recruitment Rally held at

Ganganagar.

36. It will be apposite to reproduce the following part of the

cross­examination of P.W.1­Col. Anil Singh Rathore:

27

“As far as I remember, first time the accused informed me about having received calls from undesirable elements was sometime in the month of December, 2008 when I came back from leave. Subsequently, he informed me about the same from Jodhpur recruitment rally. Further in Ganganagar, I heard the medical officers including the accused discussing about such calls being received by them on the dining table during breakfast time. Finally the same information was given by the accused in his verbal and written confessional statement made on 14 and 15 July 2009 respectively.”

37. P.W.1­Col. Anil Singh Rathore has further stated in his

evidence that he along with the respondent­officer, who was

also one of the members of team ‘B’ as Medical Officer, went to

Ajmer on 9th July, 2009 for the Recruitment Rally to be held on

11th July, 2009. He states about the news being published in

newspapers on 13th July, 2009 about the Police taking action

against the touts. He states that the respondent­officer came to

28 him on 14th July, 2009 and wanted to confess his involvement

in the recruitment racket with the touts. They went to a nearby

temple where he narrated about his involvement over a

duration of two hours or so. He told the respondent­officer to

give everything in writing about what he has narrated. He has

further stated that on 15th July, 2009, the respondent­officer

came to him and handed over a written statement in the

presence of P.W.3­Col. Bharat Kumar and P.W.4­Col. Balraj

Singh Sohi.

38. P.W.1­Col. Anil Singh Rathore, in his cross­examination,

has admitted that he and the other Recruiting Officers had

been interacting with the Media at the site of the Recruitment

Rally. He has further admitted that during interaction on 13 th

July, 2009, a number of media persons had arrived in the

stadium, where the Recruitment Rally was being conducted.

Though he has denied that the details of information published

in the newspaper dated 13th July, 2009 were given by him, it is

29 not denied that he has interacted with the Police on 13 th July,

2009.

39. It could thus be seen that when the respondent­officer

allegedly made an oral confession on 14th July, 2009 and gave a

written statement on 15th July, 2009, the news with regard to

the recruitment racket was already known to one and all.

40. P.W.3­Col. Bharat Kumar, who was the Director of Army

Recruiting Office at the relevant time, has stated in his

examination­in­chief that during Jodhpur Recruitment Rally,

held between 11th May, 2009 and 21st May, 2009, the

respondent­officer had come to him, totally shattered with tears

in his eyes, and informed that he had received threatening calls

and SMS messages from the touts’ seeking favours for some

candidates.

41. It is thus clear from the evidence of P.W.1­Col. Anil Singh

Rathore and P.W.3­Col. Bharat Kumar that from December

30 2008 itself, they were aware about the racket of touts in the

recruitment scam. Not only this, but P.W.1­Col. Anil Singh

Rathore has gone on record to say that, in the recruitment

process, 90% of the persons recruited pay varying amount to

touts, though the selection process was free and fair. P.W.1­

Col. Anil Singh Rathore has admitted that the respondent­

officer had informed him about the phone calls as early as in

December, 2008. Insofar as P.W.3­Col. Bharat Kumar is

concerned, he has also admitted that the respondent­officer

had informed him about the phone calls in the month of May,

2009. The finding of the learned AFT that, in view of the

circumstances, it appears unnatural that the respondent­officer

would make a voluntary confession on 14th July, 2009 and the

written statement on 15th July, 2009 and that many more

persons might be involved in the recruitment scam and in order

to find a scapegoat, the possibility of the respondent­officer

being asked to make a confessional statement with an

31 assurance that no action will be taken against him, cannot be

said to be an impossible view.

42. P.W.2­ Brigadier Arun Kumar Tuli, at the relevant time,

was the Deputy Director General, Recruitment Zone Rajasthan

at Jaipur. He has also admitted in his examination­in­chief

that, when he assumed the office of Deputy Director General

Recruiting Zone, the first Recruitment Rally was conducted at

Jodhpur, sometime between 11th May, 2009 and 18th/19th May,

2009. He has admitted that during this Recruitment Rally, he

came to know about the receipt of complaints from Medical

Officers, including the respondent­officer, that they had

received unwanted calls and SMS messages with threatening

contents. He has also admitted in his evidence that, on 14 th

July, 2009, he received local newspapers, which were full of

news on recruitment racket. He has also admitted that, on 14 th

July, 2009, a meeting was arranged with the Superintendent of

Police, Ajmer, who informed him about the FIR.

32

43. It could thus be seen that, on cumulative appreciation of

evidence of P.W.1­Col. Anil Singh Rathore, P.W.2­ Brigadier

Arun Kumar Tuli and P.W.3­Col. Bharat Kumar, the view that

the confessional statement made by the respondent­officer did

not appear to be voluntary cannot be said to be a perverse view.

This is particularly so, when P.W.1­Col. Anil Singh Rathore has

admitted that the respondent­officer had intimated him about

such calls as early as in December, 2008, and also, P.W.2­

Brigadier Arun Kumar Tuli and P.W.3­Col. Bharat Kumar have

admitted about they having knowledge about such calls much

earlier to 14th July, 2009 and 15th July, 2009, i.e., the dates of

oral/written confession.

44. This Court in the case of Sahadevan and another vs.

State of Tamil Nadu4, after surveying various judgments on

the issue, has laid down the following principles:

“The principles

4 (2012) 6 SCC 403

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16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra­judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra­judicial confession alleged to have been made by the accused:

(i) The extra­judicial confession is a weak evidence by itself. It 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 extra­judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

34 (v) For an extra­judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

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

45. It could thus be seen that the extra­judicial confession is a

weak piece of evidence. Unless such a confession is found to be

voluntary, trustworthy 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

the contrary, P.W.1­Col. Anil Singh Rathore in his evidence has

himself admitted that the respondent­officer was part of team

‘B’. It will be relevant to refer to the following part of his

examination­in­chief:

“In any recruitment rally there are three teams, Host Army Recruiting Office,

35 team 'A' and 'B'. Host Army Recruiting Office is responsible for documentation and administration. Team 'A' is responsible for physical tests and run while team 'B' is responsible for measurements of the candidate and their medical examination. Actual tests are conducted by independent members.

These team only 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

respondent­officer cannot declare a candidate medically fit, if

he is otherwise not. His evidence would show that the team

like the one of which the respondent­officer was a member, only

assists the independent members in the conduct of tests,

measurements and the medical examination.

48. All the three witnesses have admitted that they had no

knowledge if any candidate, declared fit by the respondent­

officer, was subsequently found to have been medically unfit.

36 All the three witnesses have also admitted that there was no

material to establish that the amount, which was deposited in

the account of the respondent­officer and his father­in­law was

an amount received as illegal gratification.

49. We are, therefore, of the view that no error could be found

with the findings of the learned AFT that the respondent­officer

deserves to be acquitted of the offence punishable under

section 7 of the P.C. Act.

50. That leaves us with the appeals of the respondent­officer.

51. Perusal of the evidence of P.W.10­Varalakshmi Srinivas

and P.W.12­Major D. Srinivas would reveal that they have

stated in their evidence, that since the wife of the respondent­

officer had given birth to a girl child on 16 th February, 2009, he

wanted to rush to his native place at Dharwad and did not have

sufficient funds. As such, he had requested P.W.12­Major D.

Srinivas to give a loan of Rs.20,000/­, which amount was

37 deposited by P.W.10­Varalakshmi Srinivas in the account of the

respondent­officer, on the instructions of her husband P.W.12­

Major D. Srinivas. From the evidence of P.W.12­ Major D.

Srinivas, it would reveal that on his return from his native

place, the respondent­officer had returned the said amount.

52. 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 a loan of Rs.65,000/­ from the father­in­law of the

respondent­officer for purchase of a plot of land. The amount

of Rs.65,000/­ deposited by him in the account of the father­in­

law of the respondent­officer was towards repayment of the said

loan amount.

53. It could thus be seen that the respondent­officer had

discharged the burden to prove, as to how the said amount of

Rs.20,000/­ was deposited in his account and as to how the

amount of Rs.65,000/­ was deposited in the account of his

father­in­law. As such, that part of the order, which convicts

38 the respondent­officer for the offence punishable under 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

Union of India and others is dismissed.

B. CRIMINAL APPEAL NOS. 537­538 OF 2018

(i) Criminal Appeal Nos.537­538 of 2018 filed on behalf of

the appellant­Major R. Metri No.08585N are allowed.

(ii) The impugned judgment and order dated 2 nd March,

2017, passed by the learned AFT, convicting the

appellant­Major R. Metri No.08585N for the offence

punishable under Section 63 of the Army Act and

sentencing him to forfeiture of seniority of rank and of

severe reprimand is quashed and set aside.

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(iii) The appellant­Major R. Metri No.08585N is acquitted of

all the charges, charged with.

(iv) The appellant­Major R. Metri No.08585N is directed to

be reinstated forthwith with continuity of service.

However, in the facts and circumstances of the case,

the appellant­Major R. Metri No.08585N will not be

entitled for back­wages for the period during which he

was out of employment.

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

…..….......................J. [L. NAGESWARA RAO]

…….........................J. [B.R. GAVAI] NEW DELHI;

APRIL 04, 2022

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