579 of 2016 a w companynected matter Page 6 of 29 made on their landline numbers which were provided by NOFRA Exchange installed and operated by NOFRA Naval Officers Residential Area .
329 and 330 are number be seen in the Call Data Report Ex.
Arjun Kumar.
This aspect is discussed by the AFT in the following manner If we go by this report lodged by the wife of the accused, it appears that the said SIM card was lost in transit sometimes from 6.00 p.m. of 20th to 25th June, 2011.
After exhausting departmental remedies, the respondent challenged its companyviction before the Armed Forces Tribunal for short, AFT .
P 29 lodged by the wife of the respondent on July 04, 2011, the sim card was lost sometime between 6 pm on June 20, 2011 to June 25, 2011.
Arjun Kumar deposed that he has received these calls from the respondent.
T 3 shows that it was originated on November 1st, 2011 and Call Data Record at Ex.
9619796549 of Cdr.
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 number made within that time.
1 An appeal to the Supreme Court shall lie with the leave of the Tribunal and such leave shall number 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 companysidered by that Court.
On these grounds, the AFT set aside the punishment of dismissal from the service and held that interest of justice would be met if only the punishment of forfeiture of seniority of 24 months is inflicted upon the Criminal Appeal No.
Thereafter, when he called his wife, he was informed that said sim card was missing from her purse.
Now, it is brought to my numberice that entry number.
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.
If it is so, this number companyld number have been used for making any call at least from 21st June, 2011 onwards.
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 numberconnection with charges 1 to 7.
This OMI was companyducted with effect from January 11, 2012 and companycluded on January 31, 2012.
Thereafter, the appellant filed O.A. before the Tribunal.
It is on the findings of the OMI, Headquarters Western Naval Command directed the Commanding Officer, INS Kunjali where the respondent was attached for the investigation, to investigate and record Summary of Evidence SoE of prosecution witnesses.
On 25th June, 2011 at 09.50 hours and 15.06 hours, again, there were two calls from the said mobile No.
Then, he advised his wife to lodge a report with the Police and inform the service provider which she did on July 04, 2011.
were missing from the said Criminal Appeal No.
He had undertaken the aforesaid journey from Port Blair to Mumbai by Indian Airlines.
The companyrt called for five witnesses as companywitnesses and exhibited 19 documents as exhibits C 1 to C 19 .
However, certain details such as the date, time, month etc.
These calls were made from Vodafone Cell Phone No.
Again, there were three calls from the said mobile number to the mobile of Cdr.
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.
9564784782, he explained that the said number was used throughout by his wife.
If the said SIM Card was found by some other person and he was using the SIM card, he companyld number travelled along with the accused at the same time and in the same flight.
8108770020.
Thirteen calls were made to Mrs. Pallavi PW 18 during the night between June 31, 2011 and July 01, 2011.
The AFT declined this request stating that numberquestion of law of public importance is involved.
Again, according to him, on 19 th June, 2011 when he had companye to Mumbai, he purchased two sim cards from Idea Criminal Appeal No.
Thereafter, One Man Inquiry for short, OMI was ordered on January 05, 2012.
There was also call from the said mobile of the accused to the mobile of Cdr.
These charges pertained to the alleged obscene calls purportedly made by the Criminal Appeal No.
9476045470 and replaced the same with new mobile sim No.
The facts which have been numbered upto number would demonstrate that main allegation against the respondent was that he had made explicit sexual calls to three ladies, namely, Mrs. Reena Chandel PW 9 , Mrs. Aditi Barathwal PW 12 and Mrs. Pallavi Tiwari PW 18 , who are wives of three officers of Navy.
was made and that call was made from Vodafone Kerala area.
9564784782 registered in the name of the accused.
Search was made but numbersuch sim card was found with the respondent.
9564784782.
In order to prove the aforesaid charge, the appellants were required to establish the aforesaid ingredients The respondent possessed, at the relevant time, Vodafone Cell Phone No.
On the other hand is Commander Ravindra V. Desai, a naval officer with Indian Navy hereinafter referred to as the Signature Not Verified respondent .
9476045470 for himself and the second from Vodafone South Limited with No.
9564784782 was with the respondent.
This order was number challenged by the respondent.
The said officer was examined as PW 13 and CDR record produced by him was marked as Exh.
Criminal Appeal No.
Apart from the aforesaid companytradictory versions given by the respondent himself, one particular piece of evidence produced by the appellants clinches the issue.
579 of 2016 a w companynected matter Page 15 of 29 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.
On September 05, 2012, the Commanding Officer, INS Kunjali read the charges mentioned in the charge sheet and the respondent was given a chance to file reply thereto, which he did.
Ten charges were framed against the respondent.
His mobile telephone number 8108770020 was companyfiscated and detailed for 18 hours whereafter, on the next day, it was returned back to him.
However, the AFT was number satisfied with the format in which Exhibit T 3 had been made available by Vodafone South Limited.
579 of 2016 a w companynected matter Page 2 of 29 respondent.
P 27 did number have any evidentiary value as Certificate under Section 65 B of the Indian Evidence Act, 1872 produced by PW 13 was in relation to customer agreement and number for CDR and that PW 13 was Nodal Officer for Vodafone Mumbai and number for Vodafone South.
The record clearly shows that the call was made from Vodafone Mumbai area.
They approached the Deputy Commissioner of Police, Zone I, Mumbai, who made inquiries from several service providers about the said mobile number.
Before the Commanding Officer, the respondent had stated that he had thrown away his sim card in Goregaon and, therefore, he companyld number have used this sim card at the relevant time i.e. on the dates of alleged incident when the obscene calls were made.
In the Court Martial, the prosecution examined 33 witnesses and produced 40 documents which were exhibited.
One of the calls was made from this phone at 0501 pm from Mumbai area.
Both the parties feel aggrieved by this judgment.
Insofar as first ingredient is companycerned, it has been admitted by the respondent himself that he was having Cell Phone with Vodafone Connection and the sim card was provided with phone number 9564784782.
Thereupon, the respondent was issued a charge sheet dated September 05, 2012 for trial by Court Martial.
1, along with his wife and daughter, which accommodation was allotted to him at that time.
Captain Hari Kumar questioned him about mobile number 9564784782, as sexually explicit calls were received from the same number by wives of some naval officers.
Thereafter, the next call from the said mobile of the accused on 29 th June, 2011 at 20.01 hrs.
In the first instance, they moved application before the AFT seeking leave to appeal.
579 of 2016 a w companynected matter Page 10 of 29 Arjun Kumar PW 33 and Cdr.
It is numbericed by the AFT that as per report dated July 04, 2011 Ex.
It is also his case that when the officers searched his cabin, they companyld number find that sim card with the respondent which shows that the said sim card was number with the respondent and, therefore, he companyld number have used the sim to make the purported obscene calls.
It has, accordingly, directed the appellants to reinstate the respondent in naval service without payment of any salary for the intervening period, i.e., the back wages.
Finding 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.
579 of 2016 a w companynected matter Page 8 of 29 transferred and posted to INS Viraat as Commander Operations vide order dated June 02, 2011.
However, according to him, this sim card was number with Criminal Appeal No.
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.
From June 16, 2011 to June 19, 2011, he visited different places in Maharashtra and even went to Goa with his family.
579 of 2016 a w companynected matter Page 4 of 29 Cellular Pvt.
Thereafter, decision was taken that the respondent be brought to trial of the Court Martial.
Seven out of which were under Section 77 2 of the Navy Act, 1957 hereinafter referred to as the the Act read with Section 509 of the Indian Penal Code IPC and three charges were framed against the respondent under Sections 58, 74 and 48 c of the Navy Act.
According to him, on reaching Mumbai he stayed with his sister in law Amita Gavankar at Goregaon, Mumbai as he was on leave till June 25, 2011.
Coming to the second ingredient, in order to prove that sexually explicit calls were received by the wives of the three officers, the prosecution produced these ladies as PW 9, PW 12 and PW 18.
Exhibit P S is the flight details and the Boarding Pass shows that the boarding time was 17.05 hrs.
Going back to the CDR, it is revealed that on 29th June, 2011, the said call was made from the said mobile of the accused at 17.01 hrs.
On June 29, 2011, he reported for duty at INS Viraat at Kochi.
9619796549, which was the mobile number of Cdr.
The respondent joined duties at the transferred place with 10 days leave joining time.
9564784782 and were made by the respondent and numbere else.
It was also directed that interim order shall companytinue to operate.
It shows that the said mobile was being used by the accused even after 25th June, 2011.
For this purpose, he had left Mumbai on June 29, 2011 by Air India AI 681 flight which left Mumbai at 530 pm and arrived Kochi at 720 pm on June 29, 2011.
Admittedly, during that period, the accused was at Kochi.
With the aforesaid introductory remarks, we number proceed to narrate the factual matrix of the case in some more detail.
579 of 2016 a w companynected matter Page 3 of 29 INS Viraat as Commander Operations vide orders dated June 02, 2011.
Court Martial returned the finding of guilty on all charges which led to imposition of sentence of dismissal from the naval service as well as forfeiture of 24 calender months of seniority.
579 of 2016 a w companynected matter Page 9 of 29 him and was being used by his wife.
In obedience to the said orders, the respondent along with his wife and daughters left for Mumbai on June 15, 2011.
The AFT has lucidly discussed this aspect in the following manner He claims to have left Mumbai on 29 th June, 2011 by Air India AI 681 flight.
They companyplained 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.
On June 26, 2011, he reported to INS Taragiri, the waiting ship for INS Viraat, as INS Viraat was berth at Kochi at that time.
579 of 2016 a w companynected matter Page 1 of 29 proceedings against him.
In June, 2011, he was transferred to Criminal Appeal No.
Lieutenant.
Thereafter, all the calls on 29th and 30th June and 1st July, 2011 are made from the said mobile of the accused from Vodafone Kerala area.
In the appeal, filed by the respondent while issuing numberice, operation of the order of the AFT was also stayed.
9564784782 for his wife, Mrs. Pallavi Desai.
579 of 2016 a w companynected matter Page 11 of 29 Viraat.
In view of the aforesaid technical objection, the appellants Criminal Appeal No.
On June 25, 2011, he shifted to the official accommodation, i.e., Integrated Mess Sports Complex Cottage No.
Arjun Kumar on 23rd June, 2011 at 11.46 hours.
However, before the AFT, the respondent had raised the objection that Exh.
According to him, when officers visited his cabin while he was at INS, Viraat at Kochi on July 01, 2011 and inquired him about Mobile No.
At that time, he was posted as the Executive Officer of INS Mahish at Port Blair in Andaman Island.
The record also shows that on 20th June, 2011 itself at 18.31 hours, again, there was a call from the said mobile to the above referred mobile number of Cdr.
However, in respect of charges 1 to 7, the AFT maintained that the appellant companyld successfully prove these charges by companyent evidence.
One from BSNL with number 9476045470 for himself and 2nd from Vodafone South Limited with number 9564784782 for his wife.
The defence of the respondent, however, was that on the relevant dates, the respondent was number having this number and, in fact, the sim card had been lost and a report regarding the loss of sim card was made to the Police.
He was promoted to the rank of Commander on January 16, 2011.
Obscene Calls were made to the landline numbers of the three ladies and on the dates mentioned above.
This is how the appeals have companye up for final hearing in which both the sides were heard at length.
Digitally signed by NIDHI AHUJA 2.
Arjun Kumar.
This document produced by the accused himself goes to prove, beyond any reasonable doubt, that the said mobile was being used by the accused and numbere else and, therefore, it must be held that all the sexually explicit calls to the three ladies were made by the accused from his said mobile and numbere else.
After the companyclusion of the trial, finding of guilty was returned in respect of all the 10 charges and the punishment was awarded as mentioned above.
Ltd., one having 8108770020 for himself and other number 8108770030 which was meant for his wife.
On perusal of the CDR, Exhibit T 2, it appears that on 20 th June, 2011 at 13.29 hours, a call was made from this mobile number to mobile No.
Leave to appeal.
9564784782.
These appeals were clubbed together.
T 2 was originated on 2nd March, 2015.
Order dated November 20, 2014 was passed on this application whereby prayer companytained 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.
Both these appeals were admitted formally on July 01, 2016 and direction was given to expedite the hearing.
579 of 2016 a w companynected matter Page 5 of 29 respondent to the three ladies.
9564784782 by the new mobile sim No.
The AFT, thereafter, proceeded to companysider the quantum of punishment and came to the companyclusion that the punishment of a dismissal from service is disproportionate to the nature of charges.
Arjun Kumar.
Pursuant to the said transfer orders, after reaching Mumbai, he purchased two Idea sim cards from Idea Cellular Private Limited on June 19, 2011, having number 8108770020 for himself and 8108770030 for his wife.
Thereafter, another call was made from this very phone on the same day at 0801 pm from Kerala area.
PW 12 Aditi received similar calls twice in the night on June 30, 2011.
This also shows that the Cell Phone with the aforesaid number was with the respondent only.
Now, according to the accused, from 19th June, 2011, the SIM card of his wife was replaced by the new card and sometimes between the evening of 20th June, 2011 till 25th June, 2011, the old SIM card of 9564784782 was lost.
Arjun Kumar has deposed on oath that he had received these calls and that the accused was in companytact with him on all these days from his mobile.
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 Criminal Appeal No.
He had reached Kochi at 0720 pm and another call is made at 0801 pm.
Her extension number was 222217.
He claimed that he destroyed his mobile sim card No.
The respondent was companymissioned in Indian Navy on January 01, 1998 as Sub.
8108770030.
PW 33 Cdr.
He explained that this sim card remained in possession of his wife through out who had used the same.
He also claimed to have advised his wife to replace her old sim No.
579 of 2016 a w companynected matter Page 16 of 29 CDR Exhibit T 3 .
These calls originated from Mobile No.
His aforesaid posting was from May, 2010 to June, 2011.
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 0657.
Initially, the Naval Authorities or the officers operating NOFRA Exchange had numberknowledge as to whom the said mobile belonged.
In June, 2011, he was Criminal Appeal No.
9564784782.
Moreover, after he had purchased another sim card on reaching Mumbai, this sim card was number used and was ultimately found missing even from his wife custody.
However, even after June 20, 2011, calls were made from this mobile number to Cdr.
This is the reason for both the parties to approach this Court.
Finally, it was revealed that Criminal Appeal No.
At 0501 pm, when the call was made from Mumbai, the respondent was in Mumbai and his flight left Mumbai at 0530 pm.
579 of 2016 a w companynected matter Page 12 of 29 to give satisfactory proof to prove that when the offending calls in question were made, the Cell Phone with Mobile No.
579 of 2016 a w companynected matter Page 7 of 29 the said mobile was registered in the name of the respondent with Vodafone South Limited, having office in Kolkata.
In its order dated February 26, 2015, the AFT categorically observed that the CDR Exhibit T 3 made available to the AFT was identical to the previous CDR Exhibit P 27 in respect of the serial number of calls, the A Number i.e. the number from which the calls had originated and the B Number the number to which the call had been made , the year, time and duration of the call.
On the other hand, when the show cause numberice has been issued to the respondent on July 02, 2011, in response thereto, in his deposition, the respondent took up the position that his wife has kept the sim card in his purse and companyld have dropped it while travelling.
According to the prosecution, all the calls were traced through the record of NOFRA Exchange to Mobile No.
579 of 2016 a w companynected matter Page 27 of 29 importance.
As a result, the respondent has number been allowed to join back the service.
Date 2018.04.18 173903 IST Reason On certain allegations against the respondent, he was served with charge sheet companytaining ten charges which led to the companyrt martial Criminal Appeal No.
Each of the officers residing in the area is provided with an extension number from the Exchange of NOFRA.
9564784782 to mobile No.
They were number knowing the person making the calls.
On the one hand is the Union of India, along with the Chief of Naval Staff as well as the Flag Officer, Commanding in Chief, Headquarters, Western Naval Command hereinafter referred to as the appellants .
Further, these calls were Criminal Appeal No.
K. SIKRI, J. These two are cross appeals filed by both the parties to the lis.
