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2019 DIGILAW 495 (JK)

Major Bobade Avinash Narayanrao v. Union of India

2019-11-18

GITA MITTAL, RAJESH BINDAL

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Order 1. Issue notice to respondents. 2. Mr. Vishal Sharma, learned ASGI, accepts notice on behalf of respondents. 3. It is submitted that having regard to the nature of the writ petition, no reply is necessary. Consequently counsels have been heard on the basis of available record. 4. Vide an order dated 25th October, 2018 of a Summary General Court Martial (SGCM for brevity), the petitioner was awarded the sentence of cashiering and to undergo rigorous imprisonment of one year. This sentence was revised by the respondents by an order dated 24th January, 2019, and the period of rigorous imprisonment was enhanced to two years. 5. The petitioner assailed his conviction and the order of sentence imposed by the SGCM by way of an original application being OA No. 650/2018 before the Armed Forces Tribunal Regional Bench Srinagar at Jammu. 6. In the proceedings before the Armed Forces Tribunal, the application of the petitioner seeking suspension of sentence filed u/s 15(3) and 15(6) of the Armed Forces Tribunal, Act 2007 was being repeatedly adjourned without any consideration. In this background, the petitioner was constrained to file OWP No. 148/2019 before this Court assailing the order dated 07th January, 2019 whereby the application for interim relief was simply adjourned by the Tribunal. 7. This writ petition was taken up for consideration and decided by an order dated 04th February, 2019 whereby we had directed as follows: “(i) Subject to the petitioner furnishing a personal bond in the sum of rupees one lac with one surety in the like amount to the satisfaction of Commanding Officer, 54 RR, the remaining sentence imposed upon him shall remain suspended till disposal of the application under Section 15(3) and 15(6) of the Armed forces Tribunal Act, 2007 by the Armed Force Tribunal. (ii) The petitioner shall also furnish before the Commanding Officer, 54 RR, the full and complete address at which he would remain available during the pendency of the application before the Armed Force Tribunal. (iii) The petitioner shall strictly abide by all directions regarding his appearance before the Tribunal and surrender to the authorities.” 8. (ii) The petitioner shall also furnish before the Commanding Officer, 54 RR, the full and complete address at which he would remain available during the pendency of the application before the Armed Force Tribunal. (iii) The petitioner shall strictly abide by all directions regarding his appearance before the Tribunal and surrender to the authorities.” 8. The matter was thereafter considered by the Armed Forces Tribunal, Jammu Bench whereby the application for interim relief was allowed vide the order dated 25th March, 2019, directing as follows: “Having considered the length of incarceration including the period of close arrests of the applicant, we are inclined to enlarge the applicant on regular bail without any comment on the merit of the case. Therefore, this application for bail is allowed. The remaining sentence shall remain suspended till disposal of the appeal. It is made clear that applicant shall remain on bail on the basis of the personal bond and the surety bond which have already been filed by him before the Commanding Officer of 54 Rashtriya Rifles. The petitioner shall strictly abide by all the directions regarding his appearance before the Tribunal and surrender to the authorities.” 9. It appears that subsequent thereto, the respondents filed an application being MA No. 40/2019 in the appeal before the Armed Forces Tribunal, on 19th July, 2019, seeking review of the order dated 25th March, 2019, with the prayer for modification and permission to allow the respondents to proceed with the confirmation of the sentence as well as promulgation and to carry into effect the sentence of cashiering of the petitioner/appellant in terms of the Army Rule 168(3). 10. This application came to be allowed by the Armed Forces Tribunal vide impugned order dated 14th November, 2019, whereby the respondents were granted liberty to go ahead with the matter and the petitioner was directed to appear before the authority concerned as and when required. Aggrieved thereby, the present writ petition has been filed by the petitioner contending that the order is erroneous on facts and premised on a wrong interpretation of the applicable Army Rules and Regulations. 11. We have heard Colonel (Retd.) Mr. N.K. Kohli, Advocate who appears for the petitioner and Mr. Vishal Sharma, learned ASGI, as well as Colonel A.K. Panwar on behalf of the respondents. They have taken us through the applicable Army Rules as well. 12. Mr. 11. We have heard Colonel (Retd.) Mr. N.K. Kohli, Advocate who appears for the petitioner and Mr. Vishal Sharma, learned ASGI, as well as Colonel A.K. Panwar on behalf of the respondents. They have taken us through the applicable Army Rules as well. 12. Mr. Vishal Sharma, learned ASGI, has also placed reliance on Section 153 of the Army Act, 1950, which mandates that sentence of a Court martial would be valid only so far as it may be confirmed as provided by the Act. 13. Our attention has been drawn to Rule 168 of The Army Rules, 1954 which reads as follows: “168. Sentence of cashiering or dismissal— (1) A sentence of cashiering or dismissal awarded by a court-martial shall take effect from the date on which the sentence is promulgated to the person under sentence, or except in the case of an officer, from such subsequent date as may be specified by the commanding officer at the time of such promulgation. (2) When dismissal is combined with imprisonment which is to be carried out in a military prison or in military custody, the dismissal shall not take effect until the date on which the prisoner is released from a military prison or from military-custody. (3) When cashiering or dismissal is combined with imprisonment for life or with imprisonment which is to be carried out in a civil prison, the cashiering or dismissal shall not take effect until the date on which the prisoner is received into a civil prison.” 14. Having given our considered thought to the matter, we are of the view that it is undisputed that the appeal of the petitioner/appellant is pending consideration before the Armed Forces Tribunal Regional Bench Srinagar, at Jammu. Even in the impugned order dated 14th November, 2019, the Armed Forces Tribunal has not modified the order directing the suspension of the sentence. There is no direction that the petitioner is directed to surrender or to be taken into custody. We find that by the order dated 14th November 2019 blanket liberty has been given to the respondents to go ahead with the matter without stipulating as to what extent and to what effect. The petitioner has been directed to appear before the authorities concerned as and when he is required to appear. No reasoning at all as has been recorded in the order dated 14th November, 2019. The petitioner has been directed to appear before the authorities concerned as and when he is required to appear. No reasoning at all as has been recorded in the order dated 14th November, 2019. The learned Tribunal appears to have failed to consider the impact of the order which has been passed. 15. The appeal of the appellant/petitioner is pending. It cannot be disputed that the Armed Forces Tribunal is of the view that the appeal requires consideration and for this reason had suspended the sentence vide order dated 25th March, 2019. 16. It cannot be denied that the execution of the sentence of cashiering would be worst ignominy which could be imposed on an army officer. If the appeal of the petitioner is ultimately allowed by the Tribunal, it would be impossible to effect restitution. It would therefore be unfair to permit the respondents to proceed with the implementation of the sentence of cashiering upon the petitioner without adjudication of his appeal challenging his conviction as well as the order of sentence which is pending before the Armed Forces Tribunal. In view thereof, the order dated 14th November, 2019, is hereby set aside and quashed. 17. Given the request which is made by the Colonel Mr. A.K. Panwar and Mr. Vishal Sharma, learned ASGI, we are of the view that no prejudice would work to the petitioner if the respondents are permitted to consider the matter from the aspect of the confirmation of the conviction and sentence. The respondents may therefore, proceed with the consideration for confirmation and pass such orders as are deemed appropriate in accordance with law. There shall continue to be a stay on the promulgation and the sentence in terms of the previous orders. This writ petition is allowed in the above terms. 18. A copy of this order be made available to learned counsels for the parties under the seal and signatures of the Joint Registrar cum Bench Secretary of this Court.