Union of India & Ors. vs Major R. Metri No. 08585n

HELD:1.Reappreciation of evidence by AFT is permissible to find out if any findings of the court martial are legally not sustainable due to any reason. If the view taken by the AFT is found to be a plausible one, it will not be permissible for the Court to interfere with the same only because the Court finds the other view to be more probable/plausible. Equally, unless the finding of the AFT is found to be perverse or impossible, an interference would not be justified. [Paras 29 and 33][593-G; 594G-H]

The State of Bombay v. Kathi Kalu Oghad and Others (1962) 3 SCR 10 – followed.

Union of India and Others v. Sandeep Kumar and Others (2019) 10 SCC 496 : [2019] 12 SCR 415 – relied on.

2. It is clear from the evidence of P.W.1 and P.W.3 that from December 2008 itself, they were aware about the racket of touts in the recruitment scam. Not only this, but P.W.1 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 has admitted that the respondent-officer had informed him about the phone calls as early as in December, 2008. Insofar as P.W.3 is concerned, he has also admitted that the respondent-officer had informed him about the phone calls in the month of May, 2009. The finding of the AFT that, in view of the circumstances, it appears unnatural that the respondent-officer 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 respondent-officer being asked to make a confessional statement with an assurance that no action will be taken against him, cannot be said to be an impossible view. [Para 41][597-A-D]

3. P.W.2 has also admitted in his examination-in-chief that, when he assumed the office of Deputy Director General Recruiting Zone, the first Recruitment Rally was conducted at Jodhpur, sometime between 11 th May, 2009 and 18 th/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 respondent-officer, 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 14th July, 2009, a meeting was arranged with the Superintendent of Police, Ajmer, who informed him about the FIR. It could thus be seen that, on cumulative appreciation of evidence of P.W.1 and P.W.2 and P.W.3, the view that the confessional statement made by the respondent-officer did not appear to be voluntary cannot be said to be a perverse view. It could thus be seen that the extra-judicial 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. Further a single officer like the respondent-officer 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. [Paras 42, 43, 45, 47][597-D-H; 598-G; 599-C]

4. 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. 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 respondent-officer and his father-in-law was an amount received as illegal gratification. Therefore, the respondent officer deserves to be acquitted of the offence punishable under section

7 of the Prevention of Corruption Act [Paras 48, 49][599-D-E]

5. The respondent-officer has discharged the burden to prove, as to how the 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 father-in-law. As such, that part of the order, which convicts the respondent-officer for the offence punishable under Section 63 of the Army Act, in view of Court, was not sustainable. [Para 53][600-C]

Chandra Kumar Chopra v. Union of India and Others (2012) 6 SCC 369 : [2012] 5 SCR 1029; Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403 : [2012] 4 SCR 366 – referred to.