Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.18830 of 2017  

Union of India & Ors.  .... Appellant(s)

Versus

Chandra Bhushan Yadav       …. Respondent(s)

W I T H

Civil Appeal No.7440 of 2018  

J U D G M E N T

L. NAGESWARA RAO, J.

1. The District Court Martial imposed a punishment of

dismissal of the Respondent from service and reduction

of  the  ranks  apart  from  sentencing  him  to  rigorous

imprisonment  for  three  months.   The  Armed  Forces

Tribunal,  Regional  Bench,  Lucknow  (for  short  “the

Tribunal”)  set  aside  the  order  of  the  District  Court

Martial aggrieved by which the Union of India has filed

this Appeal.  The Respondent was enrolled in the Indian

Air  Force  in  the  trade  of  Equipment  Assistant  on

[1]

18.01.1988.   He was posted to 402 Air Force Station,

Kanpur in August, 1997. The Respondent was assigned

duty  in  Diesel  and  Petrol  Store  on  02.02.2000.

Information was received from a civilian on 03.05.2000

that 7 barrels of diesel were unloaded in civil  area at

Pappu Ka Plot at about 1400 hrs. on 02.05.2000.  The

informant  informed  4  Provost  &  Security  (Unit),  Air

Force, Kanpur, that he saw two airmen in uniform, out of

which  one  was  of  dark  complexion.   The  informant

further  stated  that  a  similar  incident  of  unloading  of

barrels was observed by him on 20.04.2000 also as well.

2. A detailed report was sent by 4 Provost & Security

(Unit), Air Force, Kanpur by a letter dated 10.05.2000 in

which it was indicated that the Respondent-herein and

Corporal G.S. Mani, Equipment Assistant were involved

in taking out POL (Petrol, Oil & Lubricants) belonging to

Air Force Station, Kanpur.  Air-Officer-Commanding, 402

Air Force Station, Kanpur directed a Court of Inquiry to

be convened.  By its report dated 31.05.2000, the Court

of Inquiry found that DHPP quantity of 5800 Ltrs. and

[2]

petrol  of  5000  Ltrs.  was  misappropriated  by  the

Respondent and the then Corporal G.S. Mani, Equipment

Assistant.   According to  the report,  manipulation  was

done by raising gate passes for a quantity more than

which  was  authorised  by  issuance  of  vouchers  and

obtaining the signature of Senior Logistic Officer on such

gate passes.  The said gate passes were used to take

out  kerosene,  diesel  and  petrol.   A  second  set  of

vouchers were prepared for the purpose of issuing gate

passes when items were taken out of guard room, which

were later destroyed after safe passage from the guard

room.  The misappropriated items were disposed in the

civil area.  On the basis of the said finding, the Court of

Inquiry recommended following actions :

(a)  Initiate  strict  disciplinary  action  against  Corporal

C.B. Yadav (Respondent) and others involved in the said

action;

(b) To make good the loss incurred due to such action

and to recover the cost of quantity DHPP 400 Ltrs. and

quantity 200 Ltrs. of petrol (Rs.68,520/-).

[3]

 3. An  Additional  Court  of  Inquiry  was  ordered  to

further  investigate  into  certain  other  aspects  not

covered by the Court of Inquiry.  By the Report dated

12.07.2007, the Additional Court of Inquiry found that

the  Respondent  had  prepared  the  gate  passes  in

advance on some occasions.  The record of the Court of

Inquiry and Additional Court of Inquiry proceedings were

forwarded  to  the  Head  Quarters,  Maintenance

Command  on  26.07.2000.   The  Court  of  Inquiry

proceedings  were  approved  by  the  AOC-in-C,

Maintenance Command, pursuant to which disciplinary

action was initiated against the Respondent and others.

A charge sheet was framed containing 14 charges and a

hearing of charge under Rule 24 of the Air Force Rules,

1969 (for short “the Rules”) was conducted before the

Air Officer Commanding-in-Chief.  The AOC-in-C ordered

evidence to be recorded in writing.   After considering

the summary of evidence, the AOC-in-C found that there

was insufficient evidence to sustain Charges 1 to 5 and

[4]

therefore, those charges were dropped.  A charge sheet

containing fresh charges was issued.   

4. On  27.08.2001,  AOC-in-C  Head  Quarters,

Maintenance  Command  convened  a  District  Court

Martial for trial of the Respondent.  The District Court

Martial  found  the  Respondent  guilty  and  imposed  a

punishment of dismissal from service and reduction of

the  rank  apart  from  sentencing  the  Respondent  to

rigorous  imprisonment  for  three  months.  The  order

dated 25.10.2001 was set aside by the Tribunal.   The

Respondent  was directed  to  have been in  continuous

service  for  the  purpose  of  pension  and other  service

benefits. However, arrears of salary was confined to 50

per cent.   

5. The Tribunal  held  that  the  allegation  against  the

Respondent  being  theft  and  misappropriation  of

kerosene  and  diesel,  the  loss  caused  due  to  theft

required to be reported to the civil  police as per Para

804(b) of the Regulations.  By referring to Section 154 of

[5]

the Code of Criminal Procedure, 1973 (for short “the Cr.

PC), the Tribunal held that it is mandatory that a First

Information  Report  (FIR)  had  to  be  registered  in  a

cognizable  case.  The  Tribunal  observed  that  the

Respondent was not given an opportunity in terms of

Rule  156  of  the  Rules  during  the  Court  of  Inquiry

proceedings.  In view of the violation of sub-rule (2), (6)

and (7) of Rule 156 of the Air Force Rules, the Tribunal

was of  the view that the proceedings of  the Court  of

Inquiry were vitiated.  The contention on behalf of the

Respondent that there was violation of Rule 24 of the

Rules and that the summary of evidence was also not

recorded in accordance with the prescribed procedure,

was not accepted by the Tribunal.  Group Captain A.K.

Gurtu,  Senior  Personnel  Staff  Officer  (SPSO),  Head

Quarters  for  Air  Officer,  Commanding-in-Chief  signed

the  order  by  which  the  District  Court  Martial  was

convened  which,  according  to  the  Tribunal  was  in

violation of Section 111 of the Act and Rule 43(4) of the

Rules.  The Tribunal observed that only the AOC-in-C is

[6]

competent to convene the District Court Martial.   The

Tribunal re-appreciated the evidence and came to the

conclusion  that  the  charges  against  the  Respondent

were not proved beyond reasonable doubt.     

First Information Report (FIR)  

6. Mr.  Vinay  Kumar  Garg,  learned  Senior  Counsel

appearing on behalf of the Respondent submitted that

Para 804 (b) of the Regulations imposes an obligation

that a loss caused due to theft should be reported to the

civil  police.   He supported the finding of  the Tribunal

that there is requirement of compulsory registration of

FIR in view of the provisions of Section 154 Cr. PC.  Mr.

R. Balasubramanian, learned Senior Counsel appearing

for the Union of India submitted that Para 804(b) of the

Regulations  is  not  mandatory.   It  is  open  to  the

authorities  to  report  a  theft  to  the  civil  police  if  the

situation warrants. He submitted that the Air Force Act,

1950  and  Air  Force  Regulations,  1964  govern  the

conduct and discipline of the Air Force.  The Air Force

Act, 1950 is a special law in which detailed procedure

[7]

for  conducting  of  trial  by  a  Court  Martial  has  been

prescribed and no requirement for registration of an FIR

is mandatory under the Rules therein.  The conduct of

trial including investigation is covered under Air Force

Act and the Rules.  He referred to Section 5 of the Cr. PC

to  submit  that  the  Cr.  PC  is  not  applicable  to  the

personnel governed under the Air Force Act.  He relied

upon the judgment of this Court in Ajmer Singh & Ors.

v. Union of India & Ors.1 in support of his argument.   

7. In Ajmer Singh (supra), it was held as follows :

“7.   Section  5  of  the  Code  of  Criminal

Procedure lays down that nothing contained in

the said Code shall, in the absence of a specific

provision to the contrary, affect any special or

local  law for  the time being in  force,  or  any

special jurisdiction or power conferred, or any

special  form of  procedure prescribed,  by any

other  law  for  the  time  being  in  force.  The

relevant Chapters of  the Army Act,  the Navy

Act and the Air Force Act embody a completely

self-contained comprehensive Code specifying

the  various  offences  under  those  Acts  and

1 (1987) 3 SCC 340

[8]

prescribing  the  procedure  for  detention  and

custody of offenders, investigation and trial of

the  offenders  by  court  martial,  the

punishments  to  be  awarded  for  the  various

offences,  confirmation  and  revision  of  the

sentences  imposed  by  court  martial,  the

execution of such sentences and the grant of

pardons,  remissions  and  suspensions  in

respect of such sentences. These enactments,

therefore,  constitute  a  special  law  in  force

conferring  special  jurisdiction  and  powers  on

court martial and prescribing a special form of

procedure for  the trial  of  the offences  under

those Acts. The effect of Section 5 of the Code

of  Criminal  Procedure  is  to  render  the

provisions  of  the Code of  Criminal  Procedure

inapplicable in respect of all  matters covered

by such special law. ”

8. It is clear from the above that the Air Force Act is a

special  law  conferring  jurisdiction  and  powers  on  the

Court Martial and prescribing the procedure for trial of

offences.   It  is  also  clear  that  the  Code  of  Criminal

Procedure  is  not  applicable  in  respect  of  matters

covered  by  the  Air  Force  Act.   Hence,  the  finding

[9]

recorded by the Tribunal  that  it  is  mandatory for  the

authorities  to  report  the  offences  to  civil  police  for

registration  of  an  FIR  is  unsustainable.   The  Tribunal

further  relied  upon Para  804(b)  of  the  Regulations  to

hold that it is incumbent on the part of the authorities to

report an offence to the civil police for registration of an

FIR.  Para 804(b) is as follows:

“804.  Loss  of  Air  Force  Equipment  and

Foodstuffs.  

(a) .. ..

(b) A loss which is supposed to be due to theft

will  be  reported  at  once  to  the  civil  police,

when the circumstances warrant the course of

action.  In  any  court  of  inquiry  which  may

subsequently be held, evidence will be taken to

show  the  date  on  which  the  loss  was  so

reported.”

9. There can be no doubt from a plain reading of the

Regulations that the reporting of an offence of theft to

the civil police is optional.  Only when the circumstances

warrant such reporting to the civil police, the competent

officer can do so. For the aforementioned reasons, para

[10]

804 (b) of the Regulations of the Air Force Act cannot be

said to be mandatory.  

Court of Inquiry:  

10. The  contention  of  the  Respondent  which  was

accepted by the Tribunal relates to the violation of sub-

Rule  (2),  (6)  and (7)  of  Rule  156.   It  is  necessary  to

reproduce sub-Rule (2), (6) and (7) of Rule 156 which

are as under :

“156. Courts of inquiry other than those

held under section 107.—

(1) .. ..

(2) Save in the case of a prisoner of war who is

still  absent,  whenever any inquiry affects the

character  or  service  reputation  of  a  person

subject  to  the  Act,  full  opportunity  must  be

afforded  to  such  person  of  being  present

throughout  the  inquiry  and  of  making  any

statements and of giving any evidence he may

wish to make or give, and of cross-examining

and  witness  whose  evidence,  in  his  opinion,

affects his character or service reputation, and

producing  any  witnesses  in  defence  of  his

character or service reputation.  

(3) .. ..  

[11]

(4) .. ..  

(5) .. ..  

(6)  The proceedings of  a  court  of  inquiry,  or

any  confession  or  statement  or  answer  to  a

question made or given at a court of inquiry,

shall  not be admissible in evidence against a

person subject to Air Force Law, nor shall any

evidence  respecting  the  proceedings  of  the

court be given against any such person except

upon the trial of such person for wilfully giving

false evidence before that court.  

(7)  Any  person  subject  to  the  Act  whose

character or service reputation is in the opinion

of  the  Chief  of  the  Air  Staff,  affected  by

anything in the evidence before or in the report

of a court of inquiry shall be entitled to a copy

of  the  proceedings  of  such  court  unless  the

Chief  of  the  Air  Staff  sees  reason  to  order

otherwise.”  

11. The Tribunal was of the view that the Respondent

was not given sufficient opportunity to defend himself

during the course of the proceedings before the Court of

Inquiry.  

[12]

12. According to the Respondent, he was not permitted

to  be  present  during  the  recording  of  statement  of

witnesses.  He was also deprived of an opportunity to

cross-examine the witnesses.  The contention on behalf

of the Union of India is that the Respondent was given

an  opportunity  to  make  a  statement  and  to  cross-

examine  witnesses.   He  was  also  given  a  chance  to

produce documentary evidence.  The Respondent made

a statement on 19.07.2000 to the effect that he did not

wish  to  cross-examine  witnesses  and  to  produce  any

documentary evidence in his defence.   

13. The  statement  made  by  the  Respondent  was

produced  before  us  which  indicates  that  he  did  not

utilize  the  opportunity  given  to  him.   Therefore,  it

cannot be held that there is violation of Rule 156 of the

Rules  and the Tribunal  committed an error  in  holding

that the proceedings of Court of Inquiry are vitiated.   

Convening Order:  

14.    The contention of the Respondent is that Group

Captain  A.K.  Gurtu,  Senior  Personnel  Staff  Officer

[13]

(SPSO), Head Quarters MC IAF signed the order by which

the District Court Martial was convened.  It is urged that

AOC-in-C  is  the  competent  authority  to  convene  the

Court Martial. The Union of India justified the order by

which  the  District  Court  Martial  was  convened  in

accordance with the Air Force Rules.   

15. Section  111  of  the  Air  Force  Act  provides  that

District  Court  Martial  may  be  convened by  an  officer

having power to convene a General Court Martial, or by

an officer  empowered by warrant  of  any such officer.

Rule  43 deals  with  convening  of  General  and District

Court  Martials.   Rule  43(4)  which  is  relevant  for  our

purpose reads as under :

“43.Convening  of  general  and  district  court-

martial. —

(4) After the convening officer has appointed or

detailed  the  officer  to  form  a  Court-Martial

under  sub-rule  (3),  convening  order  of  the

Court-Martial and endorsement on the charge-

sheet for trial of the accused by court-martial

may either be signed by convening officer or

[14]

by  a  staff  officer  on  his  behalf.  The  charge

sheet  on which  the accused to  be tried,  the

summary of evidence and the convening order

for assembly of Court-Martial shall then be sent

to  the senior  officer of  Court-Martial  and the

Judge Advocate, if appointed.”

16. In  Union  of  India  &  Ors. v.  Ex.  Flt.  Lt.  G.S.

Bajwa2, this Court examined the issue pertaining to the

authority competent to convene the Court Martial and

held as follows:

 “44.   A  ground  was  taken  before  the  High

Court  (Ground f)  that  the  convening  of  the

General Court Martial was signed by an officer,

in whose name no delegation or such authority

had  ever  been  made.  In  reply  thereto  the

appellant  had  submitted  that  the  convening

order was signed by the said officer on behalf

of the Air Officer In-charge Personnel, who had

after due application of mind, issued the order

for convening the above Court Martial. It was

not disputed before us that the Air Officer In-

charge  Personnel  (AOP)  was  empowered  to

convene  a  Court  Martial.  The  only  question

which,  therefore,  requires  consideration  is

2 (2003) 9 SCC 630  

[15]

whether the order convening the General Court

Martial was passed by the AOP and it was only

formally  communicated  under  signatures  of

the Air Commodore concerned or whether the

Air  Commodore named therein,  who was not

empowered,  himself  passed  the  convening

order. With a view to avoid any controversy on

this factual position, we directed the appellant

to produce before us the original file. We have

perused the file and we find that the order for

convening  the  General  Court  Martial  was

approved by Air Marshal D.A. LaFontaine, AOP.

There is, therefore, no force in the submission

that  the  convening  order  was  unauthorized

and, therefore, illegal.”

17. The order dated 18.08.2001 by which the District

Court Martial was convened is issued in the name of Air

Marshall S.S. Gupta, PVSM, AVSM, VSM, ADC, Air Officer

Commanding-in-Chief, Maintenance Command.  There is

no doubt that the order was signed by Group Captain

A.K.  Gurtu,  SPSO,  Head  Quarters  MC  IAF  who  is  the

Personnel  Staff Officer  for  Air  Officer  Commanding-in-

Chief, Maintenance Command, IAF.  Rule 43(4) provides

that  a  convening  order  may  be  signed  by  the

[16]

Commanding Officer or by the Senior Staff Officer on his

behalf.  The fact that Group Captain A.K. Gurtu was the

Senior  Personnel  Staff  officer  for  the  AOC-in-C

Maintenance Command, IAF is not in dispute.  A perusal

of the Record reveals that the convening order had the

approval  of  the  competent  authority  and  as  such,  it

cannot be termed as unauthorized.  Another submission

that was made by the learned Senior Counsel  for  the

Respondent  is  that  according  to  the  Organizational

Chart of Head Quarters MC IAF it is only Senior Air &

Administrative  Staff  Officer  (SAASO)  who  can  be  the

Staff Officer of the AOC-in-C.  The said submission was

countered by the learned Senior Counsel for the Union

of India.  It was contended that that Group Captain A.K.

Gurtu  was  Senior  Personnel  Staff  Officer  (SPSO)  and

lesser  than  that  of  Senior  Air  &  Administrative  Staff

Officer  (SAASO)  in  the  hierarchy.  There  is  no

requirement that only SAASO can be the Staff Officer to

AoC-in-C.   Even  Officers  lower  than  SAASO  can  be

appointed  as  Staff  Officers.   According  to  Mr.  R.

[17]

Balasubramanian, learned Senior Counsel, it is evident

from the order itself that Group Captain A.K. Gurtu who

is  Senior  Personnel  Staff Officer  (SPSO)  was the Staff

Officer and competent to sign the convening order.  

18. The convening order which was signed by the Staff

Officer of the AOC-in-C is in accord with Rule 43(4) of

the Rule and no fault can be found with the order.  The

Tribunal  committed  an  error  in  holding  that  the

convening  order  was  by  an  officer  who  was  not

competent.   

Charges 5 & 6

19.   The District Court Martial found the Respondent

guilty of Charges 1, 2, 5 and 6.  He was exonerated of

Charges 3     and 4.  The confirmation authority held

that  there  was  no  sufficient  evidence  in  relation  to

Charges 1 and 2 and they were dropped.  What remains

to be seen is whether Charges 5 & 6 are established.

Charges 5 & 6 are as follows:

“  Fifth Charge Committing Criminal  Breach of  Trust

[18]

Section 52(c)

Air Force Act,

1950

in  Respect  of  property  belonging  to

the Govt.  

In that he,  

At 402 AF Station, on 20 April 2000,

being the NCO i/c POL, Stores of 402

AF  Station  and  in  that  capacity

entrusted with POL Stores of the unit,

dishonestly  misappropriated  1400

Ltrs  of  DHPP(N),  by  raising  IAFF(Q)

429  No.EX/IV/P/10  (2000-2001)  for

200 ltrs  of  Petrol  87 MT 800 ltrs  of

DHPP(N),  but  physically  issuing

702670-K Cpl Mani GS Eqpt Asst of 7

AF Hospital 200 ltrs of Petrol 87 MT,

2200  ltrs  DHPP(N)  and  nil  Kerosene

oil  quantity,  by writing quantity 200

ltrs  of  Petrol  87  MT,  800  Ltrs  of

DHPP(N) and 1400 ltrs of kerosene Oil

on gate pass No.3129 dated 29 April

2000.   Sixth charge  

Section 52(c)  

Air Force Act,  

1950

Committing criminal breach of trust in

respect of property belonging to the

Govt.  

In that he,  

At  402 AF Station,  on 02 May 2000

being the NCO i/c POL, stores of 402

AF  Station  and  in  that  capacity

[19]

entrusted with POL stores of the unit,

dishonestly misappropriated 1400 lrts

of  DHPP(N),  by  making  use  of  two

sets  of  IAFF(Q)  429  bearing  same

serial  No.EX/IV/P/16 (2000-20010 for

a single transaction of issue of POL to

7 AF Hospital first set (receipted blue)

showing  issue  of  2400  ltrs  of

Kerosene  oil  only  and  second  set

(original black) showing issue of 2400

ltrs  of  kerosene oil  and 1400 ltrs  of

DHPP(N),  and  physically  issuing  to

702670-K Cpl Mani GS Eqpt Asst of 7

AF  Hospital  as  per  second  set  and

gate  pass  No.3131  dated  02  May

2000.   ”

20. The Tribunal on a reconsideration of the evidence

on  record  concluded  that  Charges  5  and  6  were  not

established  beyond  reasonable  doubt.   PW1  Corporal

M.K. Sharma failed to identify the signatures appended

on the vouchers. PW2 Sergeant L. Singh who was the

Record Keeper in Security Section deposed that he was

not aware as to who was responsible for the issuance of

[20]

kerosene oil.   W.O.  S.K.  Singh  who was  examined  as

PW3,  does  not  remember  the  dates  and  data  with

regard  to  deficiencies  of  POL.   He  stated  that  no

deficiency  was  found  in  POL  during  the  weekly  snap

checks from February-May, 2000.  He further stated that

the Respondent was not related to issuance of kerosene

oil  during  the  months  of  February-May,  2000.   Wing

Commander  J.K.  Chakraborty  who  appeared  as  PW4

admitted that there was no deficiency of diesel at the

time  of  handing  and  taking  over  of  duty  by  the

Respondent.  PW5 Flight Lieutenant Arvind Kumar had

no personal knowledge of the evidence as he was on

leave.  However, he stated that there was no surplus or

deficiency of POL.  PW6 Corporal G.S. Mani admitted to

unloading  seven  empty  barrels  at  Pardevanpurwa  on

20.04.2000  at  the  request  of  the  Respondent.   He

further stated that an amount of Rs.1,500/- was forcibly

given by the Respondent.  He also stated that he carried

20 barrels for collecting 2400 liters of kerosene oil and

again  collected  seven barrels  on  02.05.2000.   During

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cross-examination, he was confronted with his previous

statement  wherein  he  stated  that  he  was coerced  to

make a statement against the Respondent.  In view of

the contradictions made by PW6 who is the co-accused,

the Tribunal held that he is not a reliable witness.  PW7

Corporal S. Singh categorically stated that the loading of

barrels  containing POL was at  the behest  of  Corporal

G.S. Mani.  PW8 Hasan R. Lascar who was working in the

Medical  Ward stated that he loaded empty barrels on

the instructions of  Corporal  G.S. Mani.   PW9 Rajendra

Prasad Lascar also stated that loading and off loading of

diesel  at  Pardevanpurwa  was  in  the  presence  of

Corporal G.S. Mani.

21. We  have  examined  the  evidence  to  satisfy

ourselves as to whether there is any iota of evidence

against the Respondent. It appears from the evidence

that  Corporal  G.S.  Mani  was  actively  involved  in  the

transportation  of  diesel  barrels  and  loading  and  off

loading in the civil area.  Curiously no action was taken

against  Corporal  G.S.  Mani.   There is  no evidence on

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record  to  connect  the  Respondent  to  the  offence  of

illegal  transportation  of  POL.   Though  we  are  not  in

agreement with the Tribunal on the other issues, in view

of lack of any evidence against the Respondent, we are

inclined to uphold the judgment of  the Tribunal.   The

Appeal is dismissed.   

Civil Appeal No.7440 of 2018  

22. This  appeal  has  been  filed  by  the  Respondent

aggrieved  by  the  directions  of  the  Tribunal  that  the

Appellant shall pay only 50 per cent of the arrears of salary.

After  considering  the  submissions  of  the  learned  Senior

Counsel, we are not inclined to interfere with the order of

the Tribunal.  The appeal is accordingly dismissed.     

              ..……..........................J.

                                      [L. NAGESWARA RAO]                                             

…....…….....................J.                                                 [DEEPAK GUPTA]

New Delhi, January 17, 2020.

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