1. In this appeal filed under. Section 15 of the Armed Forces Tribunal Act 2007, the appellant, an officer holding Short Service Commission in the regular Army, has called in question the tenability of an order passed after a Summary General Court Martial (SGCM) proceeding, whereby the appellant is dismissed from service. The appellant submitted a pre-confirmation petition against the findings and sentence of the SGCM. The said petition was rejected by the competent authority viz. General Officer Commanding-in-Chief, Northern Command being devoid of merit vide order “dated 21.03.2020. The findings and the sentence on confirmation have been promulgated vide the impugned order dated 30.03.2020.

2. The charges levelled against the appellant, for which she was put to trial, are three. The first charge was with regard to an offence under Section 45 of the Army Act, in that she is alleged to have indulged in an illicit relationship with one Maj Manish Kumar, thereby behaving in a manner unbecoming of her position and the character expected of her as an officer of the Force. The second charge was with regard to an offence again under Section 45 of the Army Act, in that she, between 16.11.2016 and 24.04.2017, allowed herself to be videographed in a sexually explicit act with the said Maj Manish Kumar, a serving married officer, thereby behaving in a manner unbecoming of her position and the character expected of her; and the third charge was under Section 69 of the Army Act, in that she, on 30.04.2018, is alleged to have threatened Maj Rupa Saxena with injury to her reputation by sending messages through Short Message Service (SMS) to the said Maj Rupa Saxena from her mobile number imputing unchastity to said Maj Rupa Saxena with intent to cause harm to Maj Rupa Saxena, thereby committing a civil offence under Section 506 of the Ranbir Penal Code. The SGCM held the appellant guilty of all the three charges and sentenced her to be dismissed from service, subject to confirmation by the competent authority. The competent authority, vide impugned order dated 30.03.2020, confirmed the punishment and sentence.

3. It is to be noted that Maj Manish Kumar was also tried by a SGCM. After finding him guilty of having committed similar offences, the SGCM sentenced him to be dismissed from service. Challenging the order of the SGCM, he has filed O.A No. 704 of 2020, which was pending when the present appeal was heard on 15.07.2022 and reserved for judgment. On going through the records of this appeal, we found that the facts and the witnesses examined in both the cases were common, therefore, we were of the view that it would be more appropriate if both the cases are decided together, even though both the appellant and DW 2 Maj Manish Kumar were subjected to trial in separate SGCM proceedings. Accordingly, we directed listing of O.A (Appeal) No. 704 of 2020 for hearing. The said case was heard in detail and reserved for judgment. Now after going through the records of both the cases and considering the submissions made in both the cases, both the cases are being decided by separate judgments. 

4. Facts in nutshell, relevant for deciding the issue in question, indicate that the appellant was commissioned as a Short Service Commission Officer in the Corps of Military Intelligence of the Indian Army on 19.09.2009. It is the case of the appellant that she has an exemplary service record, participated in various operations with utmost rigour and patriotism and was awarded GOC-in-C commendation for her operational achievement in the year 2012. She was also ADC to South Western Army Commander. She has also indicated various achievements made by her while in service, in Para 4.2 of the O.A.

5. It is the case of the appellant that in August 2014, the appellant was posted to 323 Mountain Brigade located at Dalhousie (HP) as Educational Officer. In July 2016, the Brigade of the appellant was mobilized to the valley and was deployed at Avantipur in the aftermath of the elimination of Burhan Wani, the LT Commander, due to intense militant activities. On 16.11.2016, one Maj Manish Kumar (the appellant in O.A (Appeal) No. 704 of 2020) was posted to Avantipur, J&K to take over the duties of Team Cdr of Charlie Team ex 2 PARA (SF). The appellant is said to have had a very brief interaction with Maj Manish Kumar for a short period of about 10-12 days, just like other officers who were posted in the same location at the relevant period. On 24.04.2017, the wife of Maj Manish Kumar (hereinafter referred to as the Complainant) addressed a complaint to the AWWA President alleging inappropriate association of the appellant with the complainant’s husband. The appellant thereafter came to know that there was already some marital discord between Maj Manish Kumar and his wife since their marriage, due to which the complaint was filed against the said officer and the appellant. A month thereafter, the complainant submitted another complaint addressed to Respondent No. 2, in which she raised a number of grievances against her husband and once again the appellant was unnecessarily involved in the said complaint as a culprit without any incriminating evidence against her. Thereafter, due to intense pressure and correspondence by office bearers of AWWA, a Court of Inquiry (Col) came to the convened by the GOC 39 Mtn Div on the basis of false, frivolous and baseless complaint made by the complainant. The Col was to investigate the circumstances under which allegations regarding illegitimate relationship and _ physical intimacy between Maj Manish Kumar and the appellant herein, as made by the complainant vide her complaint dated 12.05.2017 addressed to the COAS. It is alleged that in order to prejudice the Col proceedings and cause harm to the character and military reputation of the appellant, morphed photographs and videos came to be circulated on various websites and on different Army WhatsApp groups. The same were also leaked to the press, on account of which several defamatory articles about the appellant came to be published. However, all these were hushed up. Behind the back of the appellant, it is alleged that uncorroborated evidence was circulated through various branches of Army HQs.

6. Be that as it may, on 17.07.2017, the CoI was conducted under the aegis of 33 Mountain Brigade and the Presiding Officer viz. Deputy Commander (late Col Sangram Singh). The convening order of this CoI is Annexure Al dated 17.07.2017. The Col concluded its proceedings in a hushed-up manner on 21.07.2017. When the appellant came to know about the defamatory articles and morphed photographs purporting to be the appellant were being circulated on various social media and print media, on 22.07.2017, she is stated to have written a letter to the CO 18 SIKH Regiment, the unit of Maj Manish Kumar to issue appropriate directions restraining concerned persons in the matter of circulating the contents aimed to defame her integrity and character as a woman and an officer. When no action was taken against the perpetrators, the appellant is stated to have lodged a criminal complaint before the Police Station at Pathanpur with regard to the defamatory leakage and false allegations under Sections 499, 500, 506, 354C, 124B, 34 IPC r/w Section 66E, 67 and 67A of the Indian Evidence Act. It is the grievance of the appellant that on this complaint also, no action had been initiated in view of the undue influence of the Army officers.

7. Be that as it may, after the Col proceedings were concluded and when nothing had happened, pointing out the illegalities and the procedural lapses in the conduct of Col with regard to violation of Rules 180 and 184 of the Army Rules, the appellant approached this Tribunal by filing an O.A and in Feb 2018, the JAG Branch issued a letter bringing out the lapses in the Col. In the meanwhile, on 06.03.2018, the respondents filed a charge sheet against the appellant, wherein she was charged under Section 63 of the Army Act. Being aggrieved, in the month of August 2018, the appellant filed W.P No. 9141 of 2018 before the Delhi High Court. The said writ petition was dismissed by the Delhi High Court on 30.08.2018 giving liberty to the appellant to approach this Tribunal, since the relief sought fell within the ambit of the term “service matters”. Accordingly, the appellant filed O.A No. 1594 of 2019 before this Tribunal on 10.09.2019 seeking, /nter alia, a declaration that Section 63 of the Army Act cannot be read to include the alleged act of illicit relationship of the appellant and quashing of the charge sheet as the act alleged by the respondents cannot be deemed to be an act prejudicial to the good order and military discipline. On 26.09.2018, this Tribunal issued notice to the respondents. Meanwhile, since no proceedings had taken place with regard to the Col, the SoE was reopened on 03.12.2018 and it ended on 28.02.2018, while the appellant was attached to Rashtriya Rifles Unit for about 1¥2 years in a remote and isolated location. The respondents in the meanwhile on 18.01.2019 filed a reply to the O.A pending before this Tribunal and finally on 07.05.2019, this Tribunal indicated to the respondents that in case they intended to proceed against the appellant, they should provide a copy of the charge sheet to her by 22.05.2019. Thereafter on 13.05.2019, final charge sheet was issued to the appellant, wherein the initial charges set up under Section 63 of the Army Act were completely dropped and new charges under Section 45 of the Army Act was incorporated. In view of the above, the O.A filed before this Tribunal became infructuous. In the new charge sheet issued vide Annexure A2 on 13.05.2019, it was alleged that the appellant had allowed herself to be videographed in a sexually explicit manner with a married officer and baseless and unfound allegations had been made relying upon a CD provided by the complainant, wife of Maj Manish Kumar showing a woman purported to be the appellant involved in the physical act. It is stated that there is no face of any man seen in the said video. The appellant submits that at this stage, to her anguish and shock, the contents of the charge sheet and operational details in respect of the appellant were leaked to the press and a detailed article dated 17.05.2019 regarding the matter pending before this Tribunal as well as the conduct of operations, post killing of Burhan Wani, in which the appellant was an active participant, appeared in the print media “Tabloid”. The appellant, therefore, filed M.A No. 1517 of 2019 in the pending O.A. It is stated that though in principle this Tribunal, vide order passed on 27.05.2019, agreed with the contentions raised by the appellant, it found that the Tribunal is not competent to direct the Commanding Officer to convene a Col for the purpose of leakage of the information. Further, even though the appellant requested for convening of the CoI to enquire into the repeated leakages, the same was repeatedly ignored and in violation of the rights available to the appellant, the SGCM was set up. The appellant, therefore, filed W.P (Crl) No. 165 of 2019 before the Hon’ble Supreme Court under Article 32 of the Constitution. However, the Hon’ble Supreme Court was not inclined to invoke the original jurisdiction, but gave liberty to the appellant, vide order passed on 02.07.2019, to approach this Tribunal and seek appropriate remedy. Thereafter, the appellant invoked the jurisdiction of this Tribunal by filing O.A No. 1157 of 2019 and during the pendency of the O.A, an interim relief was sought to restrain the respondents from continuing with the disciplinary proceedings against her. Since the SGCM proceedings were continuing, the appellant made an application under Rule 49 of the Army Rules stating that the charges against the appellant were not an offence. On 26.07.2019, the respondents filed Annexure A5 reply to the aforesaid application under Rule 49 of the Army Rules, wherein it was stated that the right of privacy of the appellant is not absolute and they cannot condone the act of the appellant. 

8. Being aggrieved and dissatisfied by the refusal of this Tribunal to grant interim stay against continuation of the SGCM in spite of the fact that the charge sheet was not tenable, the appellant approached the Delhi High Court challenging the order of this Tribunal by filing W.P (C) No. 8739 of 2019. On 14.08.2019, the Delhi High Court dismissed the appellant’s prayer for staying the SGCM proceedings at the interim stage and directed the appellant to approach this Tribunal in case she is aggrieved by the findings of the SGCM. Since the application filed under Rule 49 of the Army Rules was also dismissed, the appellant approached the Hon'ble Supreme Court by filing SLP(C) No. 20637 of 2019 challenging the order dated 14.08.2019 passed by the Delhi High Court. But vide Annexure A9 order dated 02.09.2019 the Hon’ble Supreme Court refused to intervene at the interim stage, but agreed to take the view on the proceedings of the SGCM once the SGCM took a particular view at the final stage. Thereafter, vide its order dated 09.02.2020, the SGCM found the appellant guilty of the charge and dismissed her from service. This was confirmed by the confirming authority and ultimately challenging all these, the present O.A has been filed.

9. Mr. Amit Kumar, learned counsel appearing for the appellant argued the matter before us in detail and submitted that in the present case, the complainant, wife of DW 2 Maj Manish Kumar,is alleged to have found a SD card in the wallet of her husband, which contained intimate photographs and sexually explicit videos of her husband and the appellant. Based on the complaint filed by the appellant, a Col was convened and based on the Col, the charge sheet was issued on 13.05.2018 recommending SGCM. In the SGCM, electronic evidence in the form of a compact disc, which was admittedly a copy of the alleged SD card found by the complainant without there being a certificate under Section 65B of the Evidence Act was taken on record and treated as a valid piece of evidence. Based on the illegal evidence and an illegal proceeding held, the SGCM returned its finding of guilt against the appellant and announced the sentence of dismissal, which has been confirmed by the competent authority. It is the case of the appellant that the SGCM failed to appreciate and apply the safeguards provided under Section 65B of the Evidence Act. It is said that the alleged electronic evidence (computer output) was found on an unknown storage device memory card, which was further shared with the SGCM through a compact disc burned by Mr. Abhay Nath Mishra. It is alleged that the unknown SD card was never taken into custody by the SGCM and the CD was admitted in the absence of a certificate under Section 65B of the Evidence Act, which is the sine qua non for admission of secondary electronic evidence. It is further stated that the finding of the SGCM that the SD card and the unspecified mobile phone belonged to Maj Manish Kumar is an incorrect and arbitrary finding.

10. Placing reliance on a judgment of the Hon’ble Supreme Court in the case of Anwar P.V v. P.K. Basheer and others (2014) 10 SCC 473, it is argued that the four conditions enumerated in the said decision for satisfying the requirement of Section 65B(2) have not been complied with in the said case and as the certificate required under law is not available, the findings of the SGCM based on such evidence are unsustainable in law. Taking us through various provisions and the law laid down in the case of Anwar P.V (supra), it was argued that an electronic record by way of secondary evidence cannot be admitted in evidence unless the requirements under Section 65B of the Evidence Act are satisfied. It is categorically argued that the SGCM has committed a grave error in recording a finding that “evidence of PW 9 and PW10, both examined as experts, brings out that to determine authenticity of the photos and video, original source is not required, therefore the production of the SD card as an exhibit was not essential’, which, according to the learned counsel for the appellant, is in total disregard to Section 65B of the Evidence Act. The non-production of the SD card and its exhibition before the SGCM was necessary and this having not been done, the entire evidence against the appellant falls. It was argued that Section 22A of the Evidence Act clearly states that oral admissions as to the contents of electronic records are not relevant until and unless the genuineness of the electronic record is not proved. It is stated that the SGCM while admitting the electronic evidence has relied upon a judgment of the Hon'ble Supreme Court in the case of Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801, but completely ignored the Larger Bench decision in Anwar P.V (supra). The decision in Shafhi Mohammad (supra) has been overruled by the Hon'ble Supreme Court in the case of Aun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) SCC Online SC 571 and, therefore, the findings arrived at by the SGCM are unsustainable in law,

11. It is argued on behalf of the appellant that the entire controversy and the allegations against the appellant revolve around the complaint given by PW 16 wife of DW 2 Maj Manish Kumar who was having a disturbed marriage. The appellant has been dragged into their marital discord and the respondents had played an instrumental role in causing miscarriage of justice by committing the following acts:

(i) — Framing multiple charges under the same provision arising out of the same alleged transaction in contravention of the golden rules of framing charges.

(ii) Framing charges that outrage the modesty of a woman on the basis of a video which was prima facie inadmissible

(iii) Arbitrary knit-picking specific ingredients of specified offences under the Indian Penal Code (497 Adultery, triable under section 69 of the Army act as civil offence) and illegally putting in under section 45 of the Army Act, which was not even an offence under 497 IPC in respect of woman before it was decriminalized by the Apex Court.

(iv) It is pertinent to mention here that offences specified in the IPC takes the route from year 1860. However, the offences specitied under the Army Act are much later from year 1950, thus the intention of the parliament was very clear that to create a distinction of Acts or series of Acts in the respective offences. The same gets confidence when punishment assigned in these offences. Therefore, by any stretch of imagination it cannot be construed that the specified act designed as the Criminal offence or part of any such act can be tweaked in parts and tried under section 45 of the Army Act.

(v) Ilegally admitting electronic evidence in gross and material contravention of Section 65B by relying on Shafi Mohammad (Supra.) which was per incuriam and has since been overruled.

(vi) Convicting and penalizing the Appellant on the basis of such illegally admitted electronic evidence

(Vii) Causing social boycott, professional disrepute, economic travesty to the Appellant.

Further pointing out that the SGCM committed a grave error in admitting evidence contrary to the mandate of law, arguments were made to say that the charges framed under Section 45 of the Army Act are not sustainable in law and the allegations against the appellant are not proved.

12. Taking us through the statements of some of the witnesses like PW 1 Maj Nitin Kumar Tiwari, it was argued that there is no adequate evidence to show closeness, coordination and communication between the appellant and Maj Manish Kumar. The appellant was on leave between 30.12.2016 and 10.01.2017. There was no personal interaction between 30.12.2016 and 10.01.2017. Evidence was read out to show that the allegations are not proved. The change of events and circumstances have not been completely established and the call records, mobile details and electronic evidences have not been proved. The fact of payment of bill at Lemon Tree Premiere, New Delhi and other circumstances have not been established. Pointing out various discrepancies in the statements of the prosecution witnesses, learned counsel argued that the allegations against the appellant were not established.

13. A detailed additional written submission, after analyzing the statements of prosecution witnesses were produced by the learned counsel for the appellant during the course of hearing before us, which we have taken on record. We have meticulously gone through the statements of each of the prosecution witnesses indicated therein. However, apart from pointing out the discrepancies in the statements of witnesses, main emphasis of the learned counsel was in the matter of admitting secondary electronic evidence without following the requirements of law laid down by the Hon’ble Supreme Court in various decisions with regard to fulfilment of the requirements of Section 65B of the Evidence Act. 

14. The respondents have refuted the aforesaid contentions by filing a detailed counter affidavit and producing the original records of the SGCM. Mr. Bhati, learned Sr. CGSC appearing for the respondents pointed out that on 04.02.2014, the marriage between DW 2 Maj Manish Kumar and PW 16 Bhavya Sharma was solemnized and they had been living together for about 04-05 years thereafter. The appellant herein was posted as Education Officer with HQ 323 Mountain Brigade, Dalhousie and in September 2016, after the Burhan Wani incident, the 323 Mountain Brigade, including the appellant, moved to Avantipura, Srinagar (Jammu and Kashmir). On 13.09.2016, a child was born to DW 2 Maj Manish Kumar and his wife PW 16 Ms. Bhavya Sharma. PW 1 Maj Nitin Kumar Tiwari, the Team Commander of Assault Team of 2 PARA (SF) Battalion operating under Kilo Force, along with his team, moved to Avantipura, where it was co-located with 323 Mountain Brigade, the Appellant’s Brigade. On 15.11.2016 or 16.11.2016, DW 2 Maj Manish Kumar came from Bangalore to Avantipura to replace PW 1 Maj Nitin Kumar Tiwari. It was here that the appellant and DW 2 Maj Manish Kumar met each other and came in touch with each other. On 05.12.2016, PW 1 Maj Nitin Kumar Tiwari left Avantipura and DW 2 Maj Manish took over as team commander. Before coming to Avantipura, DW 2 Maj Manish Kumar had left his wife (PW 16) and their new born daughter at her matrimonial house in Lucknow. It was thereafter that PW 16, wife of DW 2 Maj Manish Kumar, found the behavior of her husband becoming strange, particularly after moving to the valley. Referring to the statement of PW 16, it was pointed out that, after DW 2 Maj Manish Kumar came to the valley, he started avoiding his wife and answering her calls and she found his phone busy whenever she called him. On 16.12.2016, the 323 Mtn Bde and the appellant were reverted back to Dalhousie. Thereafter, the appellant was on leave from 25.12.2016 to 31.12.2016 and 01.01.2017 being Sunday, which is evident from Exhibit 11. DW 2 Maj Manish Kumar proceeded on leave to Delhi from 30.12.2016 to 10.01.2017 and referring to Exhibit 29 and the statements of certain prosecution witnesses, it was argued that on 30.12.2016 and 31.12.2016, the appellant and DW 2 Maj Manish Kumar stayed together at Hotel Lemon Tree Premiere, New Delhi. On 01.01.2017, DW 2 Maj Manish Kumar left the hotel for Lucknow. The appellant checked out from the hotel at 1700 hours and a bill of Rs.11,168/- was paid from the appellant’s ATM card. It was pointed out that both the appellant and DW 2 Maj Manish Kumar stayed in the hotel and on 02.1.2017, DW 2 Maj Manish Kumar left Lucknow for Delhi after staying with his wife and the four months old child only for one day. While on leave, i.e. on 04.01.2017, DW 2 Maj Manish Kumar reached Dalhousie, where he stayed with the appellant in her accommodation up to 11.01.2017. PW 7 Maj Rupa Saxena, then posted at 639 EME Battalion at Palampur was sent on temporary duty to Dalhousie, where she stayed in the Captain’s Married Accommodation along with the appellant. The appellant left Dalhousie on 19.01.2017 on leave-cum-posting and the appellant joined at Udhampur on 06.02.2017. DW 2 Maj Manish Kumar went to Lucknow on 24.02.2017 as directed by his CO, PW 18 Col Raghav Singh and it was during this period that PW 16 Bhavya Sharma, wife of DW 2 Maj Manish Kumar, found the SD card in his wallet and in the SD card she found a folder named “Rubina” containing intimate photographs and videos of the appellant and DW 2 Maj Manish Kumar. On the very same day, PW 16 Bhavya Sharma confronted DW 2 Maj Manish Kumar and asked for his cell phone, from which she contacted the appellant. Thereafter, upon PW 16 Bhavya Sharma's calling the appellant’s father, the appellant offered to tell her everything and stated that a miscommunication had taken place. Thereafter, the appellant informed PW 16 Bhavya Sharma about their stay at Lemon Tree Premiere, New Delhi and Dalhousie. It is stated that the complainant got few of the files (photographs and videos) burnt from the SD card to CD through PW 6 Abhay Nath Mishra. She along with her father and daughter went to Delhi to meet DW 2 Maj Manish Kumar and his parents to settle the matter amicably. However, the meeting did not fructify into anything meaningful. Thereafter, DW 2 Maj Manish Kumar and PW 16 Bhavya Sharma, along with their daughter, moved to Bangalore, where DW 2 Maj Manish Kumar continued to talk to the appellant over phone on speaker mode in the presence of PW 16 Bhavya Sharma. Taking us through various documents and other material evidence available on record, Mr. Bhati, learned Sr. CGSC tried to point out the relationship between the appellant and DW 2 Maj Manish Kumar and their stay in Lemon Tree Premiere, Delhi, recovery of SD card by PW 16 Bhavya Sharma and its copying into the CD. He also argued that when the hearing of the SGCM was in progress on 20.09.2019, the original SD card was produced by PW 16 Bhavya Sharma, the complainant. It was played before the SGCM and the contents got compared with the SD card and the CD and once it was found that the CD and the SD card were in original, the same was returned to the complainant as she wanted it to be produced before the Family Court, where a dispute between herself and her husband was in progress. Taking us through various evidence and documents available on record in the SGCM proceedings, the learned Sr. CGSC argued that in this case, the allegations against the appellant had been amply proved. The appellant and DW 2 Maj Manish Kumar committed an act unbecoming of officers in uniform. It was an offence under Section 47 read with Section 69 of the Army Act and, therefore, the action taken in the matter does not call for any interference.

15. As far as the argument about non-compliance with the provisions of Section 65B of the Evidence Act and the admissibility of the videos and photographs contained in the CD are concerned, Mr. Bhati, learned Sr CGSC argued that when the SD card was produced before the SGCM, the SGCM played the SD card and copying of the contents in the SD card into CD was proved by the statement of PW 6 Abhay Nath Mishra and it was only after being satisfied that the contents of both SD and CD card were identical, the SD card was returned back to the complainant. The learned Sr. CGSC took us through Exhibit 14 forensic analysis report available on record, the statements of prosecution witnesses examined with regard to the CDs, the certificates and the notification issued by the Ministry of Electronics and Information Technology on 04.09.2018, whereby, in exercise of the powers conferred under Section 79A of the Information Technology Act 2000, the Central Government, had notified the Cyber Forensic Laboratory under Army Cyber Group, Directorate General of Military Operations, New Delhi as Examiner of Electronic Evidence within India. He also referred to the certificates produced by these authorities, which are available on record, and submitted that the electronic evidence in this case has been proved in accordance with the requirement of law. He also referred to Exhibit 20 certificate dated 03.12.2018 issued under Section 65B, so also Exhibit 24 certificate dated 26.11.2018 issued by PW 10 Lt Col A.B Sutar under Section 65B of the Evidence Act, Exhibit 25 communication dated 22.11.2018 received from Army Cyber Group and the eleven photographs (Exhibit 36) referred to in Para 9 of the Cyber Forensic Report to say that the evidence available on record clearly indicates that the requirement of Section 65 had been complied with. He, therefore, argues that on the basis of legal evidence that came on record, the charges have been proved and no case for interference is made out.

16. In rebuttal, learned counsel for the appellant again argued that since the requirements of Section 65 have not been complied with, the finding of the SGCM is perverse, inasmuch as the evidence of the defence witnesses has not been examined. He also took us through the statements of the defence witnesses to say that their evidence has not been appreciated by the SGCM properly.

17. We have heard the learned counsel for the parties at length. We have also gone through the original proceedings of the SGCM consisting of three volumes and have taken note of the arguments that have been canvassed before us. Certain objections that were raised before the SGCM were pointed out to us, which we would refer to at the time of analysis of the proceedings of the SGCM.

18. Having heard the learned counsel for the parties and after going through the records, primarily two questions arise for our consideration. They are:

(i) Whether the SGCM was right in admitting the electronic evidence (secondary evidence) in violation of the requirements of Section 65B of the Evidence Act and in total derogation to the law laid down by the Hon‘ble Supreme Court in Anwar P.V (supra) and Arun Pandit Rao Khodkar (supra)

(ii) 20 Whether the evidence, both oral and documentary, available on record are sufficient to establish the guilt of the appellant If so, whether the punishment imposed on the appellant is disproportionate to the charges held proved against the appellant

19. Before adverting to the submissions made by the learned counsels for parties, it is essential to reproduce the charges levelled against the appellant. They are reproduced as under:

After the Court of Inquiry and the Summary of Evidence, a SGCM was set up, which consisted of five officers viz. Col Bhupender Singh Nara, HQs 25 Infantry Division, Lt Col Chanchal Kapkoti, HQs 14 Sector Signal Company, Lt Col Dushyant Arora, 8 Rajputana Rifles, Maj S Suresh, 874 Animal Transport Battalion, Army Service Corps and Maj Bhumika Manhas, 539 Army Service Corps Battalion. Before the SGCM, the appellant was defended by the counsel Ms. Neela Gokhale, Wg Cdr (Retd) Mohammed Mujeeb, Ms Shruti Dixit, Advocates, Supreme Court and Mr. HR Rai, Advocate, Delhi High Court.

20. The SGCM assembled on 26.06.2019 and it was decided that the trial shall be conducted in camera. Before the commencement of the SGCM, the appellant had objected to the composition of the SGCM and submitted that in view of the nature of evidence, which is sexually explicit and private, at least 50% of the members of the SGCM were to be women in accordance with the Vishakha guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. She also pointed out that the purpose of this Act was to protect modesty and dignity of women at workplace, where she had her right to fight against sexual harassment. Her counsel submitted that going by the spirit of the Act, so far as composition of the committee under the Act is concerned, the provisions are to be applied here also, so that dignity of a woman is maintained and it could empathize with her situation. On the other hand, on the side of the prosecution, it was stated that the Vishakha guidelines were for protection of women against harassment at workplace and in this case, the appellant was neither a victim of any harassment nor was she the complainant, therefore, the guidelines were not applicable in her case. It was also pointed out that the Vishakha guidelines had been complied with at the investigation stage itself. The court martial was for the trial and not for investigation. The SGCM, after considering the rival contentions, disallowed the objection raised on behalf of the appellant stating that the SGCM had been constituted to try the accused as per the charge sheet and that it is neither a case of sexual harassment nor an investigation.

21. Thereafter, another objection was raised by the learned counsel for the appellant that the illicit relationship, even if proved, would not constitute an offence. Further, adultery is not a crime in India and, therefore, in respect of the charge with regard to illicit relationship, no trial can be conducted. However, it was pointed out that the trial was not with regard to extra-marital affair or adultery, but it is‘a case where the act of the appellant is classified as an act prejudicial to the good behavior and military discipline, an act of behaving in a manner unbecoming of a military officer, the position and character expected of a military officer. These are acts of misconduct by an officer in uniform and the appellant is required to behave in a manner as expected of her position and character.

22. Finally, an objection was raised with regard to noncompliance with the requirement under Sections 179 and 180 of the Army Act and Rules 22 and 23 of the Army Rules, rejection of special plea under Section 157 and non-grant of opportunity in the Col and SoE. If we go through the SGCM proceedings, it is clear that from page 51 onwards, the SGCM had considered all these grounds raised by the defence. Taking note of the aforesaid, we are of the view that the requirement of Army Rules 180 has been complied with and necessary certificates in this regard have been issued. Even at the time of argument, no serious objections were raised with regard to non-compliance with the provisions, therefore, we see no reason to consider this aspect of the matter at this stage. We also find that after taking note of all these objections, when the charges were read over to the appellant, she pleaded ‘not guilty’. The SMS received from Mobile No 9622139826 was also brought on record and thereafter the trial commenced at 1000 hours on 05.08.2019 with the examination of PW 1 Maj Nitin Kumar Tiwari. We find from the records that on the side of the prosecution, 20 witnesses were examined. Apart from PW 1 Maj Nitin Kumar Tiwari, Nk Gurinder Singh, HQs 323 Mountain Brigade was examined as PW 2, Nk Brijesh Kumar Mishra, 1 Field Intelligence Department, 33 Corps was examined as PW 3, Maj Naynesh Sharma, 339 (I) Supply Point (ASC) was examined as PW 4, L/Nk Paramjit, 27 Punjab as PW 5, Mr. Abhay Nath Mishra from Lucknow as PW 6, Maj Rupa Saxena of MCEME, Secunderabad as PW 7, Lt Col Amit Saxena of 7 Counter Intelligence Detachment Central Command Counter Intelligence Unit as PW 8, Lt Col Santosh Khadsare, CERT (India), Ministry of Electronics and Information Technology, New Delhi as PW 9, Lt Col A.B Sutar, Army Cyber Group, New Delhi as PW 10, Mr. Yogesh Sharma, Nodal Officer, Reliance Jio Infocom Ltd, Jammu & Kashmir as PW 11, Mr. Kapil Mahajan, Nodal Officer, Vodafone Idea Ltd, Jammu as PW 12, Mr. Ravinder Kumar Gupta, Sub Divisional Engineer (HR & Legal), BSNL, Udhampur as PW 13, Mr. Amit Kumar, Assistant Manager, Front Office, Lemon Tree Premiere, Aero City, New Delhi as PW 14, Maj Inderjeet Singh, 11 Rashtriya Rifles (DOGRA) as PW 15, Mrs. Bhavya Sharma, the complainant and wife of Maj Manish Kumar as PW 16, Mr. Rahul Malhotra, Nodal Officer, Bharti Airtel, Jammu and Kashmir, Jammu as PW 17, Col Raghav Singh, Q Leh Sub Area as PW 18, Mr. Umesh Chandra Tripathi, LDA Colony, Lucknow as PW 19 and Lt Col Manish Kumar Yadav, Army Cyber Group, New Delhi as PW 20. On the side of defence, four witnesses were examined. They are: DW 1 the appellant herein, DW 2 Maj Manish Kumar, 18 SIKH attached with 11 Rashtriya Rifles (DOGRA), DW 3 Lt Col Harsh Kumar Singh Chauhan, No. 2 Detachment, Southern Command Liaison Unit and DW 4 Mr. Ravish Kumar, Delhi Cantt. Five witnesses were examined by the Court as CWs 1 to 5. Thereafter, on evaluation of the evidence of these witnesses, the findings have been recorded.

23. At the very outset, we would deal with the aspect of taking on record the electronic evidence and to do that, we would first refer to the statement of the complainant PW 16 Bhavya Sharma, wife of DW 2 Maj Manish Kumar. According to the complainant, she at the relevant time, when her statement was recorded, was staying at M-1516, Sector 1, LDA Colony, Kanpur Road, Lucknow. She is said to have married DW 2 Maj Manish Kumar on 04.02.2014. She is holder of a master’s degree in Applied Psychology and it is alleged that a baby girl was born to her on 13.09.2016 at Bangalore. She submits that in November 2016, her husband moved to Kashmir valley and before moving to the field, he dropped her and the child at her parents’ place at Lucknow. This prosecution witness complains that once DW 2 Maj Manish Kumar moved to the valley, though communication between the husband and wife initially was normal, subsequently her husband started behaving very strange and avoiding answering her calls. Whenever she called, it was found that he was speaking to somebody or his phone was switched off. It was found that even though his phone was found to be busy, he was online on WhatsApp. It is said that on 27.12.2016/28.12.2016, she received a phone call from her husband and she was informed that he is coming on leave. On 31.12.2016, she tried to speak to him on phone as he did not come to Lucknow. When she called him in the evening around 1800 hours, he informed her on WhatsApp that he would call her later. Thereafter his phone was switched off. It was only on 01.01.2017 at about 0230 hours that they had a long conversation and thereafter between 0600 hours and 0700 hours, he reached Lucknow. It is said that her husband stayed with her at Lucknow till 02.01.2017 and then moved to Delhi from where he had to go to his place of duty at Avantipura, Jammu & Kashmir. It is said that after he left on 02.01.2017, they were in communication till 04.01.2017, thereafter it was a one-sided communication, messages and calls sent by her were not answered or not received. As he had called on to the field, she was under the impression that he is unable to contact because of his posting in field. Being worried, she is said to have made a call to one of their friends Maj Vikas Tyagi, the then Adjutant 2 PARA on 11.01.2017 and the appellant was told that her husband was on leave and he would be joining Avantipura only after 11.01.2017. It is her contention that she was surprised that her husband was on leave, he was not answering the calls and he was not available. She, therefore, called her parents in New Delhi. Then she was informed that he is on leave, but he is not available in New Delhi. She was informed by her father-in-law that her husband was at Delhi till 04.01.2017 and thereafter, he had gone somewhere on leave. She became suspicious because of all these and she states that she made certain inquiries about her husband to certain superior officers and their wives. She further goes on to say that on the morning of 24.02.2017, her husband came to Lucknow between 0600 hours and 0800 hours and while he was sleeping, she took his clothes for washing and while checking the pockets of the clothes before washing, she found the wallet of her husband. In the wallet, she found an SD card, which she inserted in her mobile phone to see the contents and on checking the contents, amongst several folders, she found one folder named “Rubina”. On checking this folder, more than 108 pictures and 02 videos were found. She deposed that the SD card was available with her when she came to give her statement before the SGCM. She handed over the SD card to the court. The defence objected to the SD card being accepted as evidence. The SGCM proceedings indicate that she had also produced a CD containing copy of all the material available in the SD card and also narrated about the CD being prepared by one of her brothers who is an expert in the field. The CD was taken on record. This was proved by the statement of PW 6 Abhay Nath Mishra, who testified that he stays in Lucknow and the complainant is his cousin, the contents of the SD card were burnt by him into the CD. The proceedings further indicate that the CD and the SD card were verified, the CD was played in the Court and the contents of the CD and the SD card were compared after playing them together and on the request of the complainant, the SD card was returned to her as she needed it for producing in the criminal case and the family disputes pending in the Family Court. The SGCM discussed about the SD card and the CD in detail. The contents of the SD card were also discussed in detail in the statements of the prosecution witnesses. In her statement, she stated about her talk with Rubina Kaur, making complaints to the AWWA and the superior officers, etc. We do not think it necessary to discuss about the evidence in this regard in detail, but the fact remains that the SD card was produced by this witness at the time of her examination and the SD card was played by the Court. This witness also talks about Exhibit 13 railway booking details of the appellant and DW 2 for going from Delhi to Abu Road (Rajasthan) on 09.03.2016 and sending e-mail vide Exhibit 62 to the President of AWWA and complaints to the Chief of Army Staff. We find from the record that Exhibit 14 is the forensic report submitted by the Army Cyber Group on 12.07.2018. It is stated in this report that PW 16 had submitted two CDs, as detailed in para 4 of the report, during the SoE. According to the complainant, these CDs contained images and two videos which were copied from an SD card which she had taken from the wallet of her husband. The detailed analysis report of the CD card indicates that both the CDs contained identical data. It contains a folder by name “Bhavya” and a second folder by name “Evidence” containing 06 audio files, 02 video files and 108 images. The sub folder “Evidence” contains 45 files. After detailed forensic analysis, it is reported that no tampering had been done to images and the videos. The final analysis is that the documents had been prepared and thereafter a certificate under Section 65B was issued by the Forensic Laboratory. From the statement of PW 16, it is clear that the SD card and the CD were played before the SGCM with the CD. That apart, PW 6 Abhay Nath Mishra stated in his evidence that he is a practicing lawyer at Lucknow, the complainant is his sister-in-law, she had come to him on 03.03.2018, she narrated to him about the SD card and she wanted the contents of the SD card to be copied into a CD. She had also brought along with her five blank CDs. It is said that this witness inserted the CD card into the card reader, he inserted the CD into the laptop and copied the files and the photographs as requested by PW 16 and downloaded them to the CD. He also copied some WhatsApp screen shots and audio clips contained in her mobile into one of the CDs. He deposed that his computer system was functioning properly, he followed the requirement of Section 65B of the Evidence Act and he is said to have issued a certificate before the Court which has been taken on record.

24. From the evidence that has come on record, it is clear that PW 16 by chance on 24.02.2017 found the SD card in the wallet of her husband, she put it in her mobile and being disturbed on seeing the contents in the file folder “Rubina”, she got it copied into a CD through PW 6 Abhay Nath Mishra and produced it at the time of SoE and before the SGCM when her statement was being recorded. The evidence available on record and the proceedings of the Col show that both the SD card and the CDs were played before the Court, they were found to be identical in nature, the forensic reports on the CD card did not show any tampering and based on the material that was collected, the finding has been recorded by the SGCM. The main objection of the respondents was that the original SD card and the laptop from which the CD was prepared were not produced and the requirement of Section 65B has not been complied with. In our considered view, these are all not relevant in the peculiar facts and circumstances of this case, when the evidence of the complainant read along with the other evidence available on record, particularly the statement of PW 6 Abhay Nath Mishra and the statement of the Cyber expert viz. PW 9 Lt Col Santosh Khadsare, clearly shows that they have examined the SD card and it is not tampered with. Once the SD card in original was produced before the Court and the Court played the SD card and then returned it back to the complainant on her request for use in the criminal case and the Family Court case and when there is nothing to indicate that the SD card or the CD were tampered with, use of such material as evidence, in the facts and circumstances of the present case, in our opinion, is legal and we see no reason to hold that the finding of the SGCM is unsustainable in law. Further, The CD provided by the complainant after analysis by the Forensic Laboratory of the Army Cyber Group, which is a notified authorized laboratory under the IT Act and the report submitted by PW 9 Lt Col Santosh Khadsare who entered the witness box clearly shows that the report Ext P14 produced by the experts is not tampered with and even identification of the voice of DW 2 Maj Manish Kumar and the appellant done in the matter is proved by the evidence that has come on record. Taking note of all these factors, we see no reason to hold that the secondary evidence is not admissible in law. In our considered view, the secondary evidence produced by the respondents along with the primary evidence contained in the SD card, which was examined by the Court during the trial clearly shows the act of commission and omission on the part of the appellant and this being an act unbecoming of an officer in uniform, action has been taken under Section 45 read with Section 69 of Army Act and we see no error in the same warranting any interference.

25. Our finding in this regard is fortified by the decision in Anwar P.V (supra), wherein while dealing with the interpretation of Section 65B of the Evidence Act, 1872, that deals with admissibility of electronic records, a three Judge Bench of the Hon'ble Supreme Court held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. The Hon'ble Supreme Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced and that the requirement of a certificate under Section 64B(4) being procedural can be relaxed by the Court wherever the interest of justice so justifies. Further, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65B of the Evidence Act. Therefore, in our considered opinion, the SGCM was right in recording a finding of guilt against the appellant, admitting electronic evidence.

26. As far as the second ground of challenge is concerned, the same is based on the analysis of factual aspects of the matter as has come on record. On a reading of the statement of DW 2 Maj Manish Kumar and the complainant PW 16 Bhavya Sharma, it is clear that their marriage was solemnized on 04.02.2014 and a girl child was born to them on 13.09.2016. The meeting of the PW 16 complainant and DW 2 Maj Manish Kumar at Avantipura is established. DW 2 Maj Manish Kumar as per Exhibit 29 and the statements of PWs 14 and 16 proceeded to leave for Delhi from 30.12.2016 to 01.01.2017 and on 30.12.2016 and 31.12.2016, both the appellant and DW 2 Maj Manish Kumar stayed together at Lemon Tree Premiere, New Delhi. Exhibit 29 indicates that DW 2 Maj Manish Kumar left the hotel for Lucknow and the appellant also checked out from the hotel at 1700 hours and a bill of Rs.11,168.47 was paid from her ATM card. Exhibit 29 is the tentative reservation slip which has been proved by examination of PW 14 Amit Kumar, Assistant Manager, Lemon Tree Premiere, New Delhi and a perusal of this document indicates that in the name of the appellant, a room for two guests was booked for stay from 30.12.2016 to 01.01.2017. The room rate was shown as Rs. 5100/- and the booking was done in the name of the appellant. The document further shows the entries made with regard to checking in of the guests on 30.12.2016 and the guest's name is printed as “Maj Rubina Kaur Keer” and on the right side of the bill, the name “Manish Kumar” has been added. They had shown to have been checked in to Room No. 1135, shown to have arrived from Mumbai and even though the witness says that only Manish Kumar checked in, the record shows staying of two persons. DW 2 Maj Manish Kumar submitted his Aadhar card at the time of checking in, in the tax invoice of the hotel pertaining to stay from 30.12.2016 up to the morning of 01.01.2017 and payment by ATM card belonging to the appellant through HDFC bank account is also proved from the document. It is the case of the respondents that when the parents of Maj Manish Kumar are staying in New Delhi, why should he stay in a hotel room and even though defence tried to indicate that it was only Maj Manish Kumar who would have stayed in the hotel, booking of the room in the name of Rubina Kaur, payment through her ATM card, etc. indicate that the explanation put forth by the appellant and Maj Manish Kumar seems to be unbelievable. It was tried to be explained when a question was posed how the ATM card of the appellant came into the hands of Maj Manish Kumar, it was said that Maj Manish Kumar had come to the railway station to see her off when she was going to Dalhousie and as he had forgotten his card, he requested her to give her card and she gave it to him and that is how he paid from her card. However, the totality of the evidence and the circumstances, including showing of booking of the hotel two days before 30.12.2016 in the name of the appellant indicates that the finding of both staying together in the hotel room between 30.12.2016 and 31.12.2016 is established, not only from the oral evidence available on record apart from the documents and the statement of the Assistant Manager of the Lemon Tree, but the closeness of the appellant and Maj Manish Kumar as is found from the electronic evidence and photographs available on record.

27. So far as the merit of the charges is concerned, the prosecution has examined twenty witnesses and the defence has examined four witnesses, including the appellant, who was examined as DW 1. That apart, voluminous documents have been produced during the course of trial and we find that in all, about 83 documents have been brought on record as Exhibits 1 to 83.

28. According to the prosecution, the appellant was posted as Education Officer with HQ 323 Mtn Bde located at Dalhousie since 2015. Sometimes in September 2016, after the Burhan Wani incident, the entire brigade moved to Avantipura (Srinagar) and along with the Brigade, the appellant also moved. Maj Manish Kumar was posted in 2 Para SS and was located at Bangalore. His wife is Mrs Bhavna, the complainant who has been examined as PW 16. It was a love marriage and the marriage was solemnized on 04.02.2014. The couple was blessed with a daughter on 13.09.2016. One Assault Team of the Battalion was operating under Kilo Force with PW 1 Maj Nitin Kumar Tiwari as its Team Commander. On 02.09.2019, the team under the leadership of PW 1 also moved to Avantipura This team was co located at 323 Mtn Bde and on 15.11.2016, Maj Manish Kumar came from Bangalore to Avantipura to take charge from Maj Nitin Kumar Tiwari. After the handing over and taking over of the charge, it is alleged that on 05.12.2016, Maj Nitin Kumar Tiwari left Avantipura and Maj Manish Kumar took over as Team Commander. Before coming to join at Avantipura, Maj Manish Kumar is said to have left his wife and the new born child at Lucknow with her parent. It is the further case of the prosecution that while posted in Avantipura, the appellant and Maj Manish Kumar came into contact with each other and developed certain relationship and in furtherance to this relationship, it is alleged that the incidents, as alleged in the charge sheet, occurred during the period in question. We have evaluated the evidence in detail particularly with regard to the staying of the appellant and Maj Manish Kumar together at the Lemon Tree Premiere, New Delhi and travelling to Dalhousie, clicking of photographs and preparation of the videos together. We find that the Court has examined all the evidence meticulously in detail and after scrutiny of the evidence, the SGCM has given its finding.

29. It is alleged that PW 16, the complainant has created a story for the purpose of falsely implicating her husband and in the process, dragged the appellant also into the controversy. However, we find that these aspects do not seem to be correct. The bald statement in this regard given by DW 2 Maj Manish Kumar, even if considered to be correct on the face of it, does not bring out the motive and the intention of PW 16 to falsely implicate him on account of their marital discord. From the statement of PW 16, it can be seen that after their marriage on 04.02.2014, her husband was posted to OTA, Chennai. The salary of Manish Kumar was saved to buy a property and Maj Manish Kumar started transferring money to the account of his wife in Sep 2015. Col Raghav Singh PW 18, CO of Maj Manish Kumar also testifies to the effect that he was not aware nor did he get any report with regard to the dispute between Maj Manish Kumar and his wife and for the first time, Exhibit 52 complaint was received on 21.04.2017 after the incidents at Lemon Tree Hotel, New Delhi and at Dalhousie had taken place. In fact, the FIR and the cases of domestic violence were initiated by Maj Manish Kumar’s wife PW 16 after the divorce petition was filed by Maj Manish Kumar. Exhibit 65 criminal complaint was filed by his wife and she had also filed an application for restitution of conjugal rights. From the documents that have come on record, it is crystal clear that there is no evidence to suggest that soon after the birth of a daughter, the wife of Maj Manish Kumar started conspiring against the appellant to extract money. On the contrary, the evidence establishes that the appellant was engaged with one Wadhwa, a resident of USA and the engagement was called off on account of certain differences between them. A theory of conspiracy by Wadhwa in connivance with PW 16, wife of Maj Manish Kumar was tried to be introduced as a defence in the trial. This aspect has also been meticulously examined and in a detailed finding recorded from Para 13 onwards, this has been discarded by the SGCM and we see no reason to disbelieve the same.

30. As far as staying of the appellant with Maj Manish Kumar at Lemon Tree Premiere, Aero City, New Delhi is concerned, from the statement of PW 14 Amit Kumar, Asst Manager, Front Office, Lemon Tree Premiere, it is established that the appellant sent a request for reservation in her name for 30.12.2016 and 31.12.2016. The request was for one room on double occupancy. It was indicated that two occupants were serving Majors and they were entitled to defence rate package of Rs.5100/- per day, all meal exclusive. From the records of the hotel produced as Exhibit 29, it is clear that based on the reservation made by the appellant, Maj Manish Kumar checked into the hotel on 30.12.2016 and on 01.01.2017 at about 1700 hrs. the appellant made a payment of Rs.11,168.47 by an ATM card ending with the number 0012, which was issued in the name of the appellant. That apart, from the statement of PW 16 Bhavya Sharma, it is indicated that around 27.12.2016 or 28.12.2016, she received a phone call from her husband about his coming on leave to Lucknow. Since he had not reached Lucknow, she tried to speak to him over phone on 31.12.2016. Thereafter, in the evening at about 1800 hrs. she is stated to have received a WhatsApp message from him and thereafter his phone was switched off. Thereafter, on 01.01.2017, at about 0230 hours, it is stated that they had a long conversation and then between 0600 hours and 0700 hours, he reached Lucknow. Even though her husband came to Lucknow, on 02.01.2017, he left Lucknow for Delhi from where he went to Avantipura. Her evidence read along with the evidence of PW 19 Umesh Chandra Tripathi, indicates that Maj Manish Kumar reached Lucknow on the morning of 02.01.2017. Various aspects with regard to the stay of the appellant in the hotel had been analysed in detail by the SGCM. DW 2 admitted about his stay in the hotel and payment through the debit card. He reached Lucknow on 02.01.2017 and it is his case that his ATM card was not functional. When he was asked to produce his bank account statement to see as to whether his ATM was functional or not, the Court records a finding that he declined to do so and his cross examination also brings out that he failed to establish with cogent reason the justification of taking the debit card from the appellant. That apart, his wife, in her cross examination, was never suggested about their plan to stay in Lemon Tree Premiere, New Delhi and her refusal to accompany her husband from Lucknow to New Delhi. The defence has been disbelieved by the SGCM. That apart, the SGCM has analysed the evidence with regard to the use of debit card by Maj Manish Kumar and found that apart from the fact that Maj Manish Kumar declined to produce his account statement, the accused also declined to do so. However, under Rule 143(2) of the Army Rules, the appellant was recalled and her bank account statement for the relevant period Exhibit 72 was produced by the prosecution. Defence objected to this certificate, but the SGCM went through Exhibit 72 bank account statement which was ultimately admitted by the appellant and it was seen from the certificate that this ATM card was used at New Delhi on 31.12.2016 and a shopping for Rs.7,000/- was made through this card and it was also used at Dalhousie on 03.01.2017 and 04.01.2017. This was explained by the appellant by contending that it is a joint account with her father and the father might have used the debit card. The SGCM has disbelieved all these statements and the use of debit card by appellant has been discussed with reference to her bank statement (Exhibit 72) and the finding recorded is that when the debit card was used, it was with the appellant and she made the payment through the debit card at Lemon Tree Premiere, New Delhi and the SGCM recorded its finding that both the appellant and Maj Manish Kumar stayed in Lemon Tree Premiere, New Delhi during the period in question. That apart, with regard to the stay in Dalhousie, detailed analysis had been made particularly with reference to the statement made by PW 7 Rupa Saxena who had come to Dalhousie at that point of time.

31. We have gone through the statement of PW 7 Maj Rupa Saxena, who testifies about the presence of the appellant at Dalhousie in the same guest house, where she stayed with the appellant. The SMS and other communications available on record pertain to the threats received by her. In her statement, PW 7 Maj Rupa Saxena points out that she was posted at 639 EME Battalion, Palampur and during January 2017, she was sent on a temporary duty to 46 Field Repair Workshop at Dalhousie. She also stated in her statement that at Dalhousie, the living accommodation for officers was an adhoc arrangement and the Captain’s married accommodation was being used as single officers’ accommodation and when she reached Dalhousie and went to the accommodation, the appellant was already staying there in one of the rooms. She identified and recognized her as “Rubina Kaur Keer”. She is stated to have reached Dalhousie on the evening of 05.01.2017 at about 1630 hrs. After a brief conversation, she went to the room and when they met in the common hall on 06.01.2017 and when the appellant took the witness to the appellant’s room, she was introduced to the appellant’s friend Maj Manish Kumar, all three of them had tea and dinner and on subsequent day also i.e. on 06.01.2017 they had lunch and dinner together. She has testified with regard to being together with the appellant and Manish Kumar up to 12.01.2017. It is categorically stated by her that between 05.01.2017 and 11.01.2017, the three of them had dinner together mostly in the room of the appellant. The presence of Manish Kumar along with the appellant at Dalhousie during this period when he was on leave and when he was expected to be with his house was established from the statement of this witness. This witness also produces Exhibit 16 photograph taken from the room of the appellant wherein all three were seen to be together. Though taking of photograph was argued to be not an offence, all this indicates about the presence of Manish Kumar at Dalhousie during the said period in the single accommodation where the appellant was also staying and his conduct in not going to meet his wife who had just given birth to a child but staying around at Dalhousie with the appellant establishes the guilt of appellant and her relationship with Manish Kumar. That apart, the SMS received by this witness PW 7 Rupa Saxena and the call details received by her on her phone had been produced before the SGCM. She opened the SMS received from Mobile Nos. 07708406854 and 09622139826 and the Court had examined these reports in detail.

32. That apart, the SMS sent to this witness asking her not to admit the photographs and their stay at Dalhousie had been analysed in detail by the Court while considering the allegations contained in the third charge. The evidence of PW 7 brings out these facts and it is established from her evidence that on 21.04.2018, she received a call from Lt Col Keshav, Second-in-Command, 11 Rashtriya Rifles (DOGRA) with regard to recording of SoE and the disciplinary proceedings in respect of the appellant in the case of Maj Manish Kumar. She was asked to give statement with regard to certain photographs available with Maj Manish Kumar and the appellant. She is stated to have reached 11 Rashtriya Rifles (DOGRA) on 29.04.2018 and it is her contention that on 29.04.2018 at about 2249 hrs. Maj Manish Kumar sent her two messages which are produced as Exhibit 18 from his mobile number 07708406854 asking her to reply back immediately. She also states about Maj Manish Kumar coming to the location during recording of SoE, talking to her on Army phone showing her photographs and asking her to remain silent and not to reply to any queries that would be made in the SoE. She also speaks about receiving a call from the appellant from an unknown number on 30.04.2018 at 0730 hours and the communication between the appellant and PW 7 Rupa Saxena made on 30.04.2018 available on record reads as under:

Monday, 30 Apr 2018, 08:02

Your word is the last thing and no one can question. Be a brave woman I knew ... and take us out. I promise nothing will happen to u. Pls u don't recognise the man in the pics... that’s it .. pl.

Look if you say u know him then it will be very easy for me to say ... that u both were staying together.

Since in the pics all three of us are there ... then perforce I will have to pull u onto this to safe myself... and then it will be a lot of mess

... things will go to house also .. so your one statement will set us all free of not identifying him. Let’s not create more mess for each other.

SO/4/2018, 08:25

A lot of people has come and given the statement what I have told U.

Ajay: CDr etc ... they have denied the pics, Ajay has denied to recognise mand u... U do the same. Proving the photos right or wrong Is not your job ... as an officer your word is the last word. Do not spoil so many people’s life.

3W/4/2018, 08:33

Your one wrong step will put a fot of people in trouble and no one will like that

Speak to me once and clear all your doubts.

30/4/2018, 08:46

Trust me... Callus... we are here to save all of us

That apart, the messages between DW 2 Maj Manish Kumar and PW 7 Rupa Saxena have also been brought on record as Exhibit 80 and the receipt of these messages from phone numbers had been testified by the appellant and the phone numbers from which the messages were sent and the phone calls received has also been established in evidence from the statements of PW 11 Yogesh Sharma, Nodal Officer, Reliance Jio Infocom Ltd, PW 13 Ravinder Kumar Gupta, Sub Divisional Engineer, BSNL, Udhampur and PW 17 Rahul Malhotra, Nodal Officer, Bharti Airtel. The prosecution has produced evidence in the matter of receipt of messages and making of calls by examining all these witnesses and it is established from their evidence that the appellant with the connivance of DW 2 Maj Manish Kumar did ask PW 7 Rupa Saxena not to identify the male person in the pictures. She was also threatened that if she identified DW 2 Maj Manish Kumar, then an allegation would be made that PW 7 Rupa Saxena and DW 2 Maj Manish Kumar stayed together in Dalhousie. The SGCM has meticulously examined all these evidence and recorded a finding that with regard to Charge No. 3, there is evidence to show that PW 7 Rupa Saxena was threatened in the manner as alleged. We have scanned through the statements of all these witnesses in detail and we find that the findings recorded by the SGCM is on due appreciation of the evidence that has come on record. The SGCM had discussed various aspects in detail and recorded the finding of guilt in the matter.

33. We see no error in the findings recorded by the SGCM. The analysis of evidence has been done properly and a reasonable finding has been recorded which does not suffer from any infirmity or illegality, in any manner, whatsoever. We see no reason to discard the findings of the SGCM or to interfere with them on the ground of it being perverse or arbitrarily recorded. The charges against the appellant, an officer in uniform behaving in a manner unbecoming of her position and character, were found to be established and she was found to have violated the requirement of Section 45 of the Army Act. Section 45 of the Army Act reads as under:

45. Unbecoming conduct. -- Any Officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as Is in this Act mentioned.

Based on the allegations made and the ingredients necessary for proving of the requirement of Section 45, it was argued that the personal relationship of two officers in private cannot form an act of misconduct under Section 45. This contention, in our considered view, cannot be accepted. We are dealing with officers in uniform, that also commissioned officers in the rank of Major in a disciplined force like Army where every act of an officer even in private or public places is subject to restrictions, looking to the nature of duty, national security and various other important facets and requirement of the Force. That is why, the section has been couched in a manner to bring within its ambit every behavior of a person which is unbecoming of the officer’s position and character. An Officer in the Force is expected to maintain certain level of character and behaviour at all times and any act, detrimental to this behavior, may not only tarnish the reputation of the Force, but may put the security interest in jeopardy and, therefore, the provisions like Section 45 have been incorporated in the Army Act warranting an officer to behave in a manner which is expected of an officer in uniform and maintain a high level of moral character. The character should be maintained at all times as it has effect on their subordinates who are working under them and at times may be used for anti-national activities also by certain vested interest.

34. Section 69 of the Army Act speaks about civil offence and the act of the appellant in threatening PW 7 Maj Rupa Saxena through SMS and other methods, which have come on record, has the effect of causing injury to her reputation and, therefore, it comes within the meaning of an offence under Section 69 of the Army Act. If the competent authority, based on the scrutiny of the entire evidence and material that have come on record, found the appellant guilty of all these charges, we see no reason to make any indulgence into the matter. Accordingly, taking note of the totality of the facts and the circumstances, we find no ground to interfere with the matter.

35. The instant appeal, being devoid of merits, stands dismissed.

36. No order as to costs.