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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 ..... ously 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 - It is also pertinent to note that apart from raising the dispute that NOFRA record shows that it was Idea Cell number, it is not disputed that phone number in question as recorded in NOFRA system is the same which belongs to the Respondent. It is only the description of the phone number that had been erroneously displayed as Idea Cell which aspect has been satisfactorily explained by the Appellants. It would be of no significance, inasmuch as same Cell number could not belong to both the Idea as well as Vodafone. Learned Counsel for the Appellants rightly argued that non-production of the certificate Under Section 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana [ 2017 (7) TMI 1366 - SUPREME COURT ]. In any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Commander Ravindra V. Desai, a naval officer with Indian Navy (hereinafter referred to as the 'Respondent'). 2. On certain allegations against the Respondent, he was served with charge-sheet containing ten charges which led to the court martial proceedings against him. 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. After exhausting departmental remedies, the Respondent challenged its conviction before the Armed Forces 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, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Airlines. 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. From June 16, 2011 to June 19, 2011, he visited different places in Maharashtra and even went to Goa with his family. On June 25, 2011, he shifted to the official accommodation, i.e., Integrated Mess Sports Complex Cottage No. 1, along with his wife and daughter, which accommodation was allotted to him at that time. 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. 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, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. These calls were made from Vodafone Cell Phone No. 9564784782. Further, these calls were made on their landline numbers which were provided by NOFRA Exchange installed and operated by NOFRA (Naval Officers Residential Area). Each of the officers residing in the area is provided with an extension number from the Exchange of NOFRA. They were not knowing the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 782 by the new mobile sim No. 8108770030. 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. 9564784782, he explained that the said number was used throughout by his wife. Thereafter, when he called his wife, he was informed that said sim card was missing from her purse. Then, he advised his wife to lodge a report with the Police and inform the service provider which she did on July 04, 2011. It is also his case that when the officers searched his cabin, they could not find that sim card with the Respondent which 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls from the said mobile No. 9564784782 to mobile No. 9619796549 of Cdr. Arjun Kumar. Again, there were three calls from the said mobile number to the mobile of Cdr. Arjun Kumar on 28th June, 2011 between 17.15 to 17.55 hours. PW-33 Cdr. Arjun Kumar has deposed on oath that he had received these calls and that the Accused was in contact with him on all these days from his mobile. It shows that the said mobile was being used by the Accused even after 25th June, 2011. Cdr. Arjun Kumar had no reason to falsely depose that he had received the calls from the Accused on these days. Dr. Sharma had made extensive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent, the prosecution had produced Call Data Record (CDR) of NOFRA land line numbers. Cdr. Anurag Saxena, Officer-in-Charge of NOFRA who appeared as PW-3 probe the said CDRs of NOFRA Telephone Exchange showing that all the calls had originated from Mobile No. 9564784782. He also produced Exh. P-10, which is the certificate issued by him to the effect that the land line numbers of the three female victims were provided by the NOFRA Telephone Exchange. He specifically deposed that true and correct call records have been produced and there is no reason to disbelieve that. 16. We now advert to the third ingredient. 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as same Cell number could not belong to both the Idea as well as Vodafone. 17. One aspect remains to be discussed. In the Court Martial proceedings, officer from Vodafone South Mumbai was produced who had brought the CDR of the Cell Phone in question to prove that calls were made from this phone. The said officer was examined as PW-13 and CDR record produced by him was marked as Exh. P-27. However, before the AFT, the Respondent had raised the objection that Exh. P-27 did not 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Respondent (Exhibit T-2) along with the Certificate Under Section 65-B of the Indian Evidence Act, 1872 (Exhibit T-1). CDR Exhibit T-2 along with the certificate Under Section 65-B being Exhibit T-1 duly proved by TW-1. In his cross-examination, TW-1 had inter alia stated that whereas CDR Exhibit T-3 (submitted to the AFT in December, 2014) had been generated on November 01, 2011, Exhibit T-2 had been generated on March 02, 2015 and had been signed and certified by TW-1. The alleged discrepancy in CDR Exhibit T-2 sought to be pointed out during his cross-examination was also duly explained by TW-1. He had explained 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion in the said judgment: 32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, 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, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n mark put up by the learned Counsel for the Respondent to the course of action taken by the AFT, we proceed on the basis that this exercise was validly done. 21. Dr. Sharma, learned Counsel appearing for the Respondent had taken pains to point out certain discrepancies in Exhibit T-2 as well as Exhibit P-27 and had, on that, basis, made a fervent plea that such documents had no credence or evidentiary value and, therefore, AFT had committed a serious error in relying upon these documents. It is not necessary to pinpoint the alleged discrepancies which according to Dr. Sharma had occurred in these documents as we find that these are 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. In view of this, even though the formality of issuance of certificate Under Section 65-B of the Indian Evidence Act is completed, we are of the opinion that our order to submit the complete Call Data Record and other documents with the certificate Under Section 65-B has not been complied by Vodafone South Limited. Therefore, we find it necessary to issue the following directions: Summons be issued to Nodal Officer, Vodafone South Limited, to direct the officer, who is responsible for the operations and the Management of the computer system required for the purpose of providing mobile facility to secure hard copies of the complete 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2014 marked Article T-1 (Now T-3) collectively is shown to me. It contains same call data record which I have produced today. However, in the record data, first Cell IDA, last cell IDA, IMEI and IMSE columns are blank. Also, SMS centre column is blank. The title of that record shows that the record of mobile number 95664784782 from 1.6.2011 to 4.7.2011 and report dated was 1.11.2011. similar title is not printed on the record which I have submitted today. The columns noted above might have remained blank because of some misalignment of columns while taking the prints of the call record. Now, said record Article T-1 is marked Exhibit T-3. I maintain 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: Provided that an appeal under this Sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against. (3) Pending any appeal Under Sub-section (2), the Supreme Court may order that-- (a) the execution of the punishment or the order appealed against be suspended; or (b) if the Appellant is in confinement, he be released on bail: Provided that where an Appellant satisfies the Tribunal that he intends to 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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