AFT’s Substitution Power Clarified: Unauthorized Ammunition Possession May Be Punished under Section 63 (Army Act) When a Section 69 Civil Offence Fails

Case: S.K. Jain v. Union of India, 2025 INSC 1215 (Supreme Court of India)
Bench: J.B. Pardiwala, J. and Alok Aradhe, J. (Judgment authored by Alok Aradhe, J.)
Date: 10 October 2025
Docket: Criminal Appeal No. 628 of 2016

Introduction

This decision addresses the reach of the Armed Forces Tribunal’s (AFT) appellate powers under Section 15(6) of the Armed Forces Tribunal Act, 2007, specifically the power to substitute a conviction recorded by a General Court Martial (GCM) for another offence on the same evidentiary substratum. The Supreme Court upheld the AFT’s substitution of a conviction under Section 69 of the Army Act, 1950 (for a civil offence under the Arms Act, 1959) with a conviction under Section 63 (act prejudicial to good order and military discipline). It also affirmed the AFT’s calibrated sentence modification from dismissal to compulsory retirement with pensionary benefits.

The appellant, a Colonel serving as Commandant, Northern Command Vehicle Depot (NCVD), Udhampur, was subjected to GCM proceedings arising out of (i) an alleged bribery demand and acceptance of Rs.10,000, (ii) alleged possession of ammunition without authority under the Arms Act, and (iii) unexplained possession of cash of Rs.28,000. While the GCM convicted the appellant on the corruption and ammunition charges and acquitted him on the cash charge, the AFT, on appeal, set aside the corruption and Arms Act convictions but substituted a finding of guilt under Section 63 of the Army Act for the ammunition-related conduct and imposed compulsory retirement. The Supreme Court has now affirmed the AFT’s course, clarifying the statutory framework, the preconditions for substitution, and the limited standard of review applicable in appeals from the AFT.

Summary of the Judgment

The Supreme Court upheld the AFT’s finding that the corruption charge (Section 69 read with the J&K Prevention of Corruption Act, 2006) was not proved, and the acquittal on the unexplained cash charge (Section 63) stood.
On the ammunition charge, while the GCM had convicted the appellant of a civil offence under the Arms Act via Section 69, the AFT found the strict application of the Arms Act inappropriate on the evidence. However, it held that the established facts (possession/recovery of old ammunition in the appellant’s office and failure to follow standing instructions on disposal/accounting) constituted an act prejudicial to good order and military discipline under Section 63 of the Army Act and substituted the conviction accordingly.
Relying on Section 15(6) of the AFT Act (with its non obstante clause) and drawing analogy with Section 222 CrPC and Section 162 of the Army Act, the Supreme Court held that the AFT can lawfully substitute a conviction if:
- (i) the accused could have been lawfully found guilty by the original Court Martial for the substituted offence on the evidence led; and
- (ii) the Tribunal may pass a fresh, proportionate sentence for the substituted offence.
Finding concurrent and unassailed factual findings regarding recovery of ammunition, and accepting the AFT’s assessment that the facts supported Section 63 culpability, the Supreme Court affirmed the substituted conviction and the modified sentence of compulsory retirement with all retiral benefits.
Applying the limited standard of review in a Section 30 AFT Act appeal, the Court declined interference as the AFT’s order was neither arbitrary, unreasonable, nor capricious.

Analysis

1. Precedents and Authorities Considered

Union of India v. R. Karthik (2020) 2 SCC 782: Cited for the limited scope of interference by the Supreme Court in appeals under Section 30 of the AFT Act. The Court reiterated that it will be slow to interfere with the Tribunal’s discretion unless the order is arbitrary, unreasonable, or capricious.
Union Of India v. Major General Shri Kant Sharma (2015) 6 SCC 773: Referred to for the procedural route regarding remedy and leave to appeal under the AFT Act (this guided the appellant’s movement from the High Court to the AFT for leave under Section 31).
Statutory analogies:
- Section 222 CrPC: Conviction for a lesser or cognate offence on the same facts. The Court characterized Section 15(6) AFT Act as “akin to” Section 222 CrPC, underscoring that misdescription of the charge does not disable the appellate forum from rendering a lawful finding where evidence supports a related offence.
- Section 162 Army Act, 1950: The Court described Section 15(6) AFT Act as in pari materia with Section 162 Army Act, denoting legislative continuity in enabling corrective substitution/revision in the military justice chain.
- Rule 62(4) of the Army Rules: Invoked by the AFT to support the concept that a person may be found guilty of a lesser or different offence included in the factual matrix of the charge—an internal analogue to substitution principles.

2. The Court’s Legal Reasoning

(a) The statutory scheme: Sections 63, 69, and 70 of the Army Act

Section 69 (Civil offences): Creates a legal fiction whereby commission of a civil offence by a person subject to the Army Act becomes an offence triable by a Court Martial, subject to Section 70. Punishment tracks the civil law or up to seven years, depending on the nature of the civil offence.
Section 63 (Good order and military discipline): A residuary disciplinary provision capturing acts or omissions “not specified in this Act” but which are prejudicial to good order and military discipline. It ensures that non-codal misconduct undermining discipline remains punishable.
Section 70: Carves out certain serious civil offences (murder, culpable homicide not amounting to murder, and rape against civilians) from Court Martial jurisdiction, with specified exceptions.

The Court clarifies that Section 63 is available where conduct is not codified elsewhere in the Act but undermines discipline. Section 69 addresses true civil offences. Where the evidence does not prove the civil offence (here, the Arms Act contravention), the same factual matrix may, if it reveals neglect and breach of military standing orders impacting discipline, legitimately ground a Section 63 conviction.

(b) Section 15(6) AFT Act: The substitution power and its limits

The Tribunal may substitute a finding of guilt “for any other offence for which the offender could have been lawfully found guilty by the court martial” and pass sentence afresh. The Supreme Court distilled two necessary conditions (para 21):

The accused could have been lawfully found guilty of the substituted offence by the original Court Martial, on the evidence adduced at trial; and
The Tribunal may then impose a fresh sentence for the substituted offence.

By construing Section 15(6) as akin to Section 222 CrPC and in pari materia with Section 162 of the Army Act, the Court confirms a coherent legislative policy: appellate authorities in the military justice system may correct charge-description errors and adjust findings to fit the proven facts, ensuring neither impunity nor injustice flows from technical mischarging.

(c) Application to the facts

There were concurrent findings (GCM and AFT) that ammunition—identified as old vintage stock—was recovered from the appellant’s office. A material exhibit corroborated this. An expert opined it remained capable of discharge.
However, the AFT found no evidence of unlawful motive or purpose; and on the Arms Act link, the strict ingredients of the civil offence were not made out, rendering a Section 69 conviction unsustainable.
The AFT nevertheless found that the possession/recovery of unaccounted/old ammunition in the office, and the failure to adhere to standing instructions governing disposal and accounting, constituted neglect and an act prejudicial to good order and discipline under Section 63.
Given the evidence and the broad disciplinary remit of Section 63, the Supreme Court held that the appellant “could lawfully have been convicted” of Section 63 by the GCM; therefore, the AFT rightly invoked Section 15(6) to substitute the conviction and impose a fresh, proportionate sentence.

(d) Sentencing and proportionality

Exercising Section 15(6)(b), the AFT mitigated the punishment from dismissal to compulsory retirement with all pensionary/retiral benefits. Emphasizing proportionality and the AFT’s discretionary calibration (“balancing the disciplinary needs of service with fairness to the individual”), the Supreme Court declined to interfere.

(e) Standard of review on appeal to the Supreme Court

Under Section 30 of the AFT Act, the Supreme Court’s interference is limited to cases where the Tribunal’s order is arbitrary, unreasonable, or capricious (R. Karthik). Finding none of these infirmities, and noting concurrent factual findings and the AFT’s faithful application of Section 15(6), the Court dismissed the appeal.

3. Impact and Forward-Looking Implications

Affirmation of AFT’s substitution jurisdiction: Appellants and respondents alike must account for the possibility that the AFT—while setting aside a conviction under Section 69—may substitute a conviction under Section 63 if the evidentiary matrix reveals conduct prejudicial to discipline, even absent a proven civil offence.
Charge-framing and trial strategy: JAG officers and prosecutors should consider framing alternative or in-the-alternative disciplinary charges (or, at minimum, ensure that evidence proving SOP breaches and disciplinary neglect is fully led), anticipating that substitution may follow at the AFT stage. Defence counsel should pre-emptively address Section 63 exposure and marshal mitigation even when contesting the civil offence.
Clarified boundary between civil offences and disciplinary misconduct: Mere possession of unaccounted/old ammunition within a military workplace, without proof of unlawful purpose or statutory contravention, may still amount to a Section 63 breach grounded in failure to follow standing orders and accounting norms.
Sentencing guidance: The case underscores that even upon substitution, the AFT can recalibrate punishment to a measured, proportionate outcome (here, compulsory retirement with benefits), aligning discipline with fairness where the gravamen is neglect rather than criminal mens rea.
Procedural compliance and record-keeping: Units handling munitions should tighten SOPs on accounting, disposal, and documentation. Commanders must ensure no personal custody of surplus/obsolete rounds in offices; lapses risk Section 63 liability regardless of Arms Act culpability.
Appellate posture under Section 30 AFT Act: Parties should calibrate expectations; absent arbitrariness or unreasonableness, Supreme Court interference with AFT’s substitution and sentencing discretion will be rare.

Complex Concepts Simplified

Section 63 (Army Act) – “Good order and military discipline”: A broad, residuary offence capturing acts/omissions that, while not specifically listed as offences, undermine discipline. Neglect of standing instructions or SOPs can suffice.
Section 69 (Army Act) – “Civil offences”: Treats commission of a civil offence by service personnel as an Army Act offence for Court Martial trial. Requires proof of all ingredients of the civil statute (here, the Arms Act).
Legal fiction: A statutory assumption (Section 69) that converts a civil offence into a service offence for trial and punishment purposes, though the underlying elements remain those of the civil law.
Non obstante clause: “Notwithstanding anything contained…” in Section 15(6) AFT Act gives the AFT overriding power to substitute findings and sentences even if earlier subsections might suggest otherwise.
Substitution of conviction (Section 15(6) AFT Act): The AFT can replace a conviction with another for which the accused could lawfully have been convicted on the evidence at trial (akin to Section 222 CrPC on lesser/cognate offences).
Rule 62(4), Army Rules: Embodies the principle that an accused can be found guilty of a lesser or included offence based on the facts, supporting substitution logic within military justice.
Compulsory retirement vs. dismissal: Dismissal strips pension/retiral benefits and carries a severe stigma; compulsory retirement ends service but preserves benefits, reflecting a mitigated disciplinary response.
Scope of Supreme Court review (Section 30 AFT Act): Highly deferential to the AFT; interference is justified only if the Tribunal’s decision is arbitrary, unreasonable, or capricious.

Conclusion

The Supreme Court’s decision in S.K. Jain v. Union of India crystallizes two important propositions in military justice:

The AFT’s substitution power under Section 15(6) is robust. Where the evidence proves misconduct prejudicial to discipline, the Tribunal may substitute a conviction under Section 63 even if a civil offence under Section 69 (e.g., an Arms Act contravention) is not made out—provided the original Court Martial could lawfully have returned that substituted finding on the record.
Sentencing must be proportionate to the real gravamen of misconduct. The AFT’s mitigation from dismissal to compulsory retirement, preserved by the Supreme Court, exemplifies principled calibration where neglect and SOP failures are proved sans criminal mens rea.

Beyond resolving the appellant’s grievances, the ruling offers clear guidance to commanders, prosecutors, and defence counsel: charge prudently, lead evidence on SOP and accounting norms, and be prepared for substitution to disciplinary offences where civil offences falter. In appellate review, the Supreme Court will defer to the AFT’s statutory discretion absent manifest unreasonableness. As a precedent, the case strengthens the coherence of the military justice framework by aligning procedural flexibility with substantive fairness and the imperatives of discipline.