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TMI Blog2018 (4) TMI 1939X X X X Extracts X X X X X X X X Extracts X X X X ..... orces 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kochi at that time. On June 29, 2011, he reported for duty at INS Viraat at Kochi. 4. It may be mentioned, at this stage, that according to him he had earlier purchased two mobile sim cards for mobile handsets when he was posted at INS Mahish, Port Blair. One from BSNL with No. 9476045470 for himself and 2nd from Vodafone South Limited with No. 9564784782 for his wife. Again, according to him, on 19th June, 2011 when he had come to Mumbai, he purchased two sim cards from Idea Cellular Pvt. Ltd., one having 8108770020 for himself and other No. 8108770030 which was meant for his wife. 5. On July 01, 2011 at about 22.45 hours, he was woken up from his sleep and escorted by Commander Manoj Jha (PW-20) to Captain Hari Kumar, the Commanding Officer of INS Viraat. Captain Hari Kumar questioned him about mobile No. 9564784782, as sexually explicit calls were received from the same number by wives of some naval officers. He explained that this sim card remained in possession of his wife throughout who had used the same. Search was made but no such sim card was found with the Respondent. His mobile telephone No. 8108770020 was confiscated and detailed for 18 hours whereafter, on the next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person making the calls. They complained to their husbands, who, in turn, reported to their senior officers and finally, all the sexually explicit calls made to these three ladies were traced to Mobile No. 9564784782. These calls were made to Reena Chandel on June 21, 2011 in the night, on June 22, 2011 in the morning, on June 23, 2011 in the afternoon and the last call was made to her on June 30, 2011 in the morning at 06:57. Her extension number was 222217. Thirteen calls were made to Mrs. Pallavi (PW-18) during the night between June 31, 2011 and July 01, 2011. PW-12 Aditi received similar calls twice in the night on June 30, 2011. According to the prosecution, all the calls were traced through the record of NOFRA Exchange to Mobile No. 9564784782 registered in the name of the accused. Initially, the Naval Authorities or the officers operating NOFRA Exchange had no knowledge as to whom the said mobile belonged. Therefore, it was difficult for them to trace the person making the calls. They approached the Deputy Commissioner of Police, Zone I, Mumbai, who made inquiries from several service providers about the said mobile number. Finally, it was revealed that the said mobile was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich shows that the said sim card was not with the Respondent and, therefore, he could not have used the sim to make the purported obscene calls. 11. It is clear from the above that the Respondent has admitted the fact that he had purchased sim card from Vodafone with Mobile No. 9564784782. However, according to him, this sim card was not with him and was being used by his wife. Moreover, after he had purchased another sim card on reaching Mumbai, this sim card was not used and was ultimately found missing even from his wife custody. The aforesaid explanation of the Respondent has not been accepted either by the GCM or the AFT, and rightly so. 12. The reason for discarding the explanation of the Respondent is that he has been taking inconsistent stands in this behalf. Before the Commanding Officer, the Respondent had stated that he had thrown away his sim card in Goregaon and, therefore, he could not have used this sim card at the relevant time i.e. on the dates of alleged incident when the obscene calls were made. On the other hand, when the show cause notice has been issued to the Respondent on July 02, 2011, in response thereto, in his deposition, the Respondent took up the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsive argument in endeavour to dislodge the creditworthiness of Cdr. Arjun Kumar. However, in our view, his deposition remains unshaken and credible. 13. Another interesting evidence which have surfaced and which nails the Respondent on this aspect is that as per the Respondent himself, he had proceeded to Kochi on June 29, 2011 to join the duty on INS Viraat. For this purpose, he had left Mumbai on June 29, 2011 by Air India AI-681 flight which left Mumbai at 5:30 pm and arrived Kochi at 7:20 pm on June 29, 2011. One of the calls was made from this phone at 05:01 pm from Mumbai area. Thereafter, another call was made from this very phone on the same day at 08:01 pm from Kerala area. At 05:01 pm, when the call was made from Mumbai, the Respondent was in Mumbai and his flight left Mumbai at 05:30 pm. He had reached Kochi at 07:20 pm and another call is made at 08:01 pm. This also shows that the Cell Phone with the aforesaid number was with the Respondent only. The AFT has lucidly discussed this aspect in the following manner: "He claims to have left Mumbai on 29th June, 2011 by Air India AI-681 flight. Exhibit P-S is the flight details and the Boarding Pass shows that the boardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. From the evidence discussed above, it stands established that calls were made from Cell Phone No. 9564784782. However, some controversy has arisen in respect of CDRs produced from the service provider, namely, Vodafone South Mumbai and the Respondent is trying to take advantage thereof. In this behalf, it may be mentioned that in the NOFRA records, though Cell Phone No. 9564784782 is rightly mentioned, the said phone number is displayed as belonging to Idea network. On that basis, it was argued that NOFRA CDRs could not have been relied upon. However, it needs to be recorded that the Appellants had given satisfactory explanations for the aforesaid mistake. It was explained before the AFT that the mobile number of the Respondent had been erroneously shown as an Idea Cell Number due to feeding of Code "95" as that of Idea Cell in the system of NOFRA. This was also clarified by Mr. Fernandes who appeared as CW-2. He was the Programmer of the NOFRA system. It is significant to point out that there is no cross-examination by the Respondent on this point. The discussion of the AFT, on this aspect, runs as follows: "The learned Counsel for the Accused pointed out that as per call rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customer agreement and not for CDR and that PW-13 was Nodal Officer for Vodafone Mumbai and not for Vodafone South. In view of the aforesaid technical objection, the Appellants filed an application Under Section 17 of the Armed Forces Tribunal Act, 2007 for summoning Nodal Officer, Mumbai Sector, Vodafone along with a direction to produce the CDR of the mobile number of the Respondent. Order dated November 20, 2014 was passed on this application whereby prayer contained in the application was allowed and summons issued to the Nodal Officer, Mumbai Sector, Vodafone for production of CDR of the mobile number belonging to the Respondent along with the Certificate Under Section 65-B of the Indian Evidence Act, 1872. This order was not challenged by the Respondent. In response to the summons issued by the AFT on November 10, 2014, Vodafone South Limited, Kolkata had submitted the CDR as well as the Customer Agreement of the Respondent along with the certificate Under Section 65-B which came to be exhibited as Exhibit T-3. However, the AFT was not satisfied with the format in which Exhibit T-3 had been made available by Vodafone South Limited. In its order dated February 26, 2015, the AF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained that after 2011, as per guidelines issued by DoT, Government of India, the format of the CDR had been changed. After considering the testimony of TW-1, AFT has observed that Exhibit T-2, submitted by TW-1, is reliable and is properly stored and generated in the Centralized Server of Vodafone, as under: "However, Subir Kumar Deb deposed on oath and explained that though the CDR, Exhibit T-3, was submitted with certificate in December, 2014, the heading of the same clearly shows that it was generated on November 01, 2011, while the CDR, Exhibit T-2, signed and certified by him, was generated on March 2, 2015, after receipt of summons from this Tribunal. He explained that if the specific command is given for header or heading of the call data for the target mobile number, i.e., the mobile number about which the call data is to be generated, the period, the date and the time of generation are printed and in such case, the first column is always the serial number of the calls. But if that command is not given the heading and the serial number column are not printed. He explained that everyday hundreds of CDRs are generated and printed and possibly, while taking the print of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements Under Section 161 Code of Criminal Procedure, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitably take care of by the Tribunal itself and the above discussion as well as the discussion contained hereinafter would reflect the nature of so-called discrepancies and the answer thereto by the AFT. After purpose would be served by reproducing the following portion of the orders dated February 26, 2015 passed by AFT after the official of the Vodafone South Limited, Kolkata produced the CDR as well as documents pertaining to customer agreement of the Respondent pertaining to his mobile umber 9564784782 along with certificate Under Section 65-B of the Indian Evidence Act. "2. After receipt of the said record, we have carefully perused the Call Data Record submitted with the aforesaid certificate dated 10th December, 2014, as well as the earlier Call Data Record purporting to have been issued by Vodafone, along with the Customer Agreement on 26th December, 2012. on careful perusal and comparison of both the records, we have noted that in the record supplied earlier during the Court-Martial proceedings, against every call, the date was mentioned in full like "01-Jun-2011". However, in the column for the date in the date which is now supplied, against all the entries, except th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Call Data Record of Mobile Phone No. 9564784782 for the period from 1st June, 2011 to 4th July, 2011, along with the record of Customer Agreement and to submit the same to this Tribunal with certificate Under Section 65-B, disclosing the name and designation of the person who has signed the said certificate. The said record shall be submitted before this Tribunal on 3rd March, 2015 before 11.00 A.M. by the officer signing the certificate Under Section 65-B personally without fail. We also hereby direct Vodafone South Limited to disclose the name and designation of the person, who had issued the certificate Under Section 65-B on 10th December, 2014, along with Call Data Record and also to keep him present before this Tribunal on 3rd March, 2015 at 11.00 A.M. to explain how some of the data, particularly the dates, First Call ID A, Last Call ID A, IMEI and IMSI, are missing from the said record." 22. In this behalf, we also note that Mr. Sabir Kumar Deb, official of Vodafone, appeared as a witness, in his deposition before the AFT had suitably and satisfactorily clarified all the aspects including the following: "Examination-in-Chief: The Call Data Record of the mobile phones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintain that the information in the Call Data Record could not be selectively deleted before taking print. Cross-Examination: I voluntarily say tat sometimes, due to failure of network link also some date may be missing at particular moment, and is not printed. Now, it is brought to my notice that in Call Data Record at Exhibit T-2, column 'call time' is listed earlier the Call Data Record at Ex. T-3 where it is 9th column. Now, on perusal of the two records, I see that in Ex. T-2, SMS MT or SMS O are show but in Ex. T-3 they are indicated as SMS INC and SMS OUT respectively. Call Data Record Exh. T-3 shows that it was originated on November 1st, 2011 and Call Data Record at Ex. T-2 was originated on 2nd March, 2015. Now, it is brought to my notice that entry Nos. 329 and 330 are not be seen in the Call Data Report Ex. T-2. There are similar other numbers also which are missing from Exh. T-2. I say that wherever there were missed calls, they were shown as NULL. In 2011, such 'missed calls' have been deleted from the record and, therefore, they are not seen in Call Data Record at Ex. T-2. However, the SMS which were shown as NULL and which could not materialise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prefer an appeal, the Tribunal may also exercise any of the powers conferred under Clause (a) or Clause (b), as the case may be. 31. Leave to appeal.--(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court. (2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal. (3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time." 26. A c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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