Rohith v. Union of India
In the Armed Forces Tribunal, Principal Bench at New Delhi
O.A. 462/2015
Before Mr S.S. Satheesachandran and Mr J.N. Burma
Decided on October 6, 2016

Relevancy of the case: Appeal in a case involving the application of Section 66A after being declared unconstitutional

Statutes and Provisions Involved

• The Information Technology Act, 2000 (Section 66A)
• The Indian Penal Code, 1860 (Section 467)
• Indian Evidence Act, 1872 (Section 65B)
• The Army Act, 1950 (Section 63, 69, 109)
• The Constitution of India, 1950 (Article 19(1)(a), 19(2))

Relevant Facts of the Case

• The accused, a sepoy in the Indian Army, was alleged to have committed rape and sent grossly offensive and obscene messages to a woman. He was charged under the Army Act, 1950. General Court Martial found him guilty under Sections 63 and 69 of the Army Act read with Section 66A of the Information Technology Act, 2000.
• The accused went for an appeal.
• The respondents dismissed the accused from service, notwithstanding his request that he had already been punished for the same. However, this order was not consequential as it was sub judice before another court already.

Prominent Arguments by the Advocates

• The petitioner’s counsel submitted that The accused was charged under Section 66A which the Supreme Court had declared unconstitutional as it violated Article 19, hence “the offence was not an offence.” He claimed that the GCM did not have the jurisdiction to try the case. Further, the prosecution’s case is not proved beyond reasonable doubt as the requirements by the Supreme Court laid down under Uka Ram v. State of Rajasthan, A Jayaram v. State of Andhra Pradesh, Hanumant v. State of Madhya Pradesh were not fulfilled. It also claimed that the GCM relied upon extra-judicial confessions and failed to adhere to the requirements by the Supreme Court under Rahim Beg v. State of UP. The argument was also made regarding the admissibility of the Call Data Records, stating it did not fulfil the criterion under Section 65B of the Indian Evidence Act, as it did not produce a certificate from the service provider or examine the person.
• The respondent’s counsels drew attention to the fact that the sentence was promogulated before the Apex Court had struck down Section 66A and the applicant had misconstrued the Apex Court, thinking all prior proceedings and actions under 66A would be treated non-est. All the evidence has been rightly accepted by the GCM. Regarding the call data records, the respondents pointed out that the plaintiff did not dispute the authenticity of call records and this argument at this late stage seemed an afterthought.

Opinion of the Bench

• The GCM had the required jurisdiction to try the case.
• No one, priorly convicted or not, would be held guilty under Section 66A. However, obscene messages by the accused sent to the wife of a fellow soldier allow for framing of charge under Section 63 of the Army Act, not under Section 66A of the IT Act, 2000. The court modified the GCM’s order and limited the conviction only to Section 63 of the Army Act.

Final Decision

• Application disposed of.
• No order as to costs.

This case summary has been prepared by Akshita Rohatgi, an undergraduate student at University School of Law and Legal Studies, GGSIPU, during her internship with The Cyber Blog India in January/February 2021.