Supreme Court of India
S.K. JAINversusUNION OF INDIA & ANR.
- Citation
- 2025 INSC 1215
- Decided
- 10 October 2025
- Disposal
- Dismissed
- Bench
- B PARDIWALA
Holding
The Tribunal was within its statutory authority under Section 15(6) of the Armed Forces Tribunal Act to substitute the conviction with Section 63 of the Army Act and to modify the punishment, and its order was not arbitrary, unreasonable or capricious.
Summary
The appellant, a Colonel in the Army Ordnance Corps, was tried by a General Court Martial on three charges: corruption for accepting Rs 10,000, possession of ammunition without licence, and an act prejudicial to good order and discipline for possessing Rs 28,000 cash. The GCM convicted him of the first two charges and sentenced him to dismissal, acquitting him of the third. On appeal, the Armed Forces Tribunal held that there was no evidence of bribery and that the Arms Act could not sustain the ammunition charge, but substituted the conviction with Section 63 of the Army Act, finding the conduct prejudicial to good order and discipline, and reduced the penalty to compulsory retirement with full benefits. The Union of India sought review, which the Tribunal dismissed, and the appellant challenged the Tribunal’s substitution of conviction and the reduced punishment before the Supreme Court. The Court examined the statutory framework of the Army Act, the Armed Forces Tribunal Act and the power under Section 15(6) to substitute findings, concluding that the Tribunal acted within its authority and that its discretion was neither arbitrary nor unreasonable. Accordingly, the Supreme Court dismissed the appeal.
Issues considered
- Whether the Armed Forces Tribunal can lawfully substitute a conviction under Section 69 of the Army Act with a conviction under Section 63 of the Army Act.
- Whether the Tribunal’s modification of the punishment from dismissal to compulsory retirement is within its statutory discretion.
- Whether the Tribunal erred in rejecting the appellant’s application for review of its judgment.
Legislation cited
- Armed Forces Tribunal Act, 2007s. 15(4), s. 15(6)(a), s. 15(6)(b), s. 30
- Arms Act, 1959s. 25(1B), s. 3
- Army Act, 1950s. 59, s. 63, s. 69, s. 70
- Army Ruless. Rule 62(4)
- Code of Criminal Procedure, 1973s. 222
- J&K Prevention of Corruption Act, 2006s. 5(2)
Headnote
Issue for Consideration Matter pertains to the correctness of the order passed by the tribunal substituting the conviction of the appellant u/s.63 of the Army Act for possession of ammunition without license and held him guilty u/s.63, an act prejudicial to good order and discipline. of good order and discipline – Armed Forces Tribunal Act, 2007 – s.15 – Jurisdiction, powers and authority in matters of appeal against court martial – Appellant-Army officer tried by General Court Martial on three charges-civil offence u/s.5(2) of 2006 Act rw s.69 of
Subjects
Violation of good order and disciplineJurisdiction, powers and authority in matters of appeal against court martialArmy officerGeneral Court MartialAcceptance of moneyMilitary disciplineCorruptionPossession of ammunition without licenseSubstituted the findingAct prejudicial to good order and disciplinePunishment of dismissalCompulsory retirement with all pensionary and retiral
Judgment
[2025] 10 S.C.R. 572 : 2025 INSC 1215
S.K. Jain
v.
Union of India & Anr.
(Criminal Appeal No. 628 of 2016)
10 October 2025
[J.B. Pardiwala and Alok Aradhe,* JJ.]
Issue for Consideration
Matter pertains to the correctness of the order passed by the
tribunal substituting the conviction of the appellant u/s.63 of the
Army Act for possession of ammunition without license and held
him guilty u/s.63, an act prejudicial to good order and discipline.
Headnotes†
Army Act, 1950 – s.63 – Violation of good order and discipline –
Armed Forces Tribunal Act, 2007 – s.15 – Jurisdiction, powers
and authority in matters of appeal against court martial –
Appellant-Army officer tried by General Court Martial on three
charges-civil offence u/s.5(2) of 2006 Act rw s.69 of the 1950 Act,
with regard to alleged acceptance of money from complainant;
civil offence u/s.3 of Arms Act rw s.25(1B) and s.69 of the
1950 Act, with regard to alleged possession of ammunition;
and act prejudicial to good order and military discipline u/s.63
of the Act with regard to unexplained possession of certain
amount – GCM found the appellant guilty of charge Nos. 1
and 2, however, acquitted of charge No.3 – Tribunal held
charge No.1 (corruption) not proved; that conviction of the
appellant under the Arms Act not sustainable as evidence
did not support possession of ammunition without license,
and substituted the finding on the same charge and held the
appellant guilty u/s.63, an act prejudicial to good order and
discipline; and on charge No. 3 upheld the acquittal of the
appellant – Tribunal modified the punishment of dismissal to
that of compulsory retirement with all pensionary and retiral
benefits – Correctness:
Held: Factual foundation brought on record at the trial, clearly
discloses an act or omission on the part of the appellant which is
* Author
[2025] 10 S.C.R. 573
S.K. Jain v. Union of India & Anr.
prejudicial to good order and military discipline – Twin condition
for invocation of s.63 fulfilled, on basis thereof, the appellant could
lawfully have been convicted u/s.63 – 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 – Tribunal u/s.15(6) of
the 2007 Act, 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 – On facts, the tribunal in exercise of its power
u/s.15(6), on the established fact of recovery of ammunition from
the possession of the appellant, took a lenient view in favour
of the appellant and modified the punishment from dismissal to
compulsory retirement with all pensionary and retiral benefits –
Tribunal exercised its discretion u/s.15(6) in a manner which is
both just and proportionate, balancing the disciplinary needs of
service with fairness to the individual – Tribunal acted strictly within
the statutory framework – Said exercise of discretion, thus, does
not call for any interference – Tribunal did not commit any error in
rejecting the petition for review filed by the appellant – Army Rules –
r.62 (4) – J&K Prevention of Corruption Act, 2006. [Paras 26, 27]
Case Law Cited
Union of India & Ors. v. Major General Shri Kant Sharma & Anr.
[2015] 4 SCR 676 : (2015) 6 SCC 773; Union of India & Ors. v.
R. Karthik [2020] 1 SCR 105 : (2020) 2 SCC 782 – referred to.
List of Acts
Army Act, 1950; Armed Forces Tribunal Act, 2007; Army Rules; J&K
Prevention of Corruption Act, 2006; Code of Criminal Procedure
1973; Arms Act, 1959.
List of Keywords
Violation of good order and discipline; Jurisdiction, powers
and authority in matters of appeal against court martial; Army
officer; General Court Martial; Acceptance of money; Military
discipline; Corruption; Possession of ammunition without
license; Substituted the finding; Act prejudicial to good order
and discipline; Punishment of dismissal; Compulsory retirement
with all pensionary and retiral.
574 [2025] 10 S.C.R.
Supreme Court Reports
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
628 of 2016
From the Judgment and Order dated 01.06.2012, 03.09.2012,
and 19.02.2016 of the Armed Forces Tribunal at Delhi in OA
Nos. 445 of 2010, RA No. 34 of 2012 and MA Nos. 25 and 26
of 2016
Appearances for Parties
Adv. for the Appellant:
Sudhanshu S. Pandey, Gaichangpou Gangmei, Roshan Kumar,
Maitreya Mahaley, Yimyanger Longkumer, Ms. Darshana Deepak
Das, Kamei Bestman Kabui.
Advs. for the Respondents:
Brijender Chahar, A.S.G., Nachiketa Joshi, Sr. Adv., Mukesh
Kumar Maroria, Praneet Pranav, Amit Sharma B, Ishaan Sharma,
Raman Yadav.
Judgment / Order of the Supreme Court
Judgment
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. 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.
[2025] 10 S.C.R. 575
S.K. Jain v. Union of India & Anr.
(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.
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 :-
576 [2025] 10 S.C.R.
Supreme Court Reports
“(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.
(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 Ammunition Lot No. Qty
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
[2025] 10 S.C.R. 577
S.K. Jain v. Union of India & Anr.
appellant filed a post-confirmation petition before the Union of India.
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 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.
578 [2025] 10 S.C.R.
Supreme Court Reports
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 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 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.
1 (2015) 6 SCC 773
[2025] 10 S.C.R. 579
S.K. Jain v. Union of India & Anr.
(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 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.
580 [2025] 10 S.C.R.
Supreme Court Reports
(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 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
court-martial, 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 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
[2025] 10 S.C.R. 581
S.K. Jain v. Union of India & Anr.
(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 court-martial, -- 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 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.
582 [2025] 10 S.C.R.
Supreme Court Reports
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 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”.
[2025] 10 S.C.R. 583
S.K. Jain v. Union of India & Anr.
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 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, 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
2 (2020) 2 SCC 782
584 [2025] 10 S.C.R.
Supreme Court Reports
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 (PW-11) 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 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 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
[2025] 10 S.C.R. 585
S.K. Jain v. Union of India & Anr.
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
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
586 [2025] 10 S.C.R.
Supreme Court Reports
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.
28. For the aforementioned reasons, we do not find any merit in this
appeal. In the result, same fails and is hereby dismissed.
Result of the case: Appeal dismissed.
†
Headnotes prepared by: Nidhi Jain
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