Ankit Kumar And Others vs Union Of India And Others

Vide separate order MA stands disposed off.

Counsel for the applicant submits that in view of passing of order in the MA he does not want to press the OA and withdraw the same. As such

OA stands disposed off as withdrawn with liberty to take recourse as may be available to the applicant as per law within four weeks.

`Dasti'.

Vide this common order, we shall dispose of MA 1342/2019 in 0A(Appeal) 744/2019 filed by Ex. LS (UW) Ankit Kumar and MA 1343/2019 in

0A(Appeal) 745/2019 filed by Ex. LS (UW) Kundan Kumar for grant of bail under Section 15(3) of Armed Forces Tribunal Act, 2007 read with

Section 389 of Criminal Procedure Code 1973 (for short 'Cr.P.C')

Applicant Ankit Kumar was charge sheeted on following counts:-

1 Was drunk at about 1830 hours on 06 January 2018, near Petrol Pump Ballard Estate, Fort Mumbai, thereby committed an offence punishable

under Section 52 of the Navy Act, 1957.

Did at about 1830 hours on 06 January 2018, along with Kundan Kumar, Leading Seaman (UVV) No.226054-K quarrel with Lieutenant Akash

Singh Tomar (43394 Y), near Petrol Pump, Ballard Estate, Fort Mumbai, thereby committed an offence punishable under Section 48(a) of the Navy

Act, 1957.

Did at about 1830 hours on 06 January 2018, along with Kundan Kumar, Leading Seaman (UVV) No.226054-K strike Lieutenant Akash Singh

Tomar (43394 Y), his superior officer, near Ballard Pier, Ballard Estate, Fort Mumbai, thereby committed an offence punishable under Section 45(a)

of the Navy Act, 1957.'

Applicant Kundan Kumar was charge sheeted on following counts:-

Did at about 1830 hours on 06 January 2018, along with Ankit Kumar, Leading Seaman (OW) No.225893-W quarrel with Lieutenant Akash Singh

Tomar (43394 Y), near Petrol Pump, Ballard Estate, Fort Mumbai, thereby committed an offence punishable under Section 48(a) of the Navy Act,

1957.

Did at about 1900 hours on 06 January 2018, along with Ankit Kumar, Leading Seaman (OW) No.225893-W strike Lieutenant Akash Singh Tomar

(43394 Y), his superior officer, near Ballard Pier, Ballard Estate, Fort Mumbai, thereby committed an offence punishable under Section 45(a) of the

Navy Act, 1957, Did at about 1900 hours on 06 January, 2018, used insulting language to Lieutenant Akash Singh Tomar (43394 Y), his superior

officer,near Ballard Pier, Ballard Estate, Fort Mumbai, in that he shouted at him ""Ab kya ho gaya, aaj iski sari officer panti nikalta hoon"" thereby

committed an offence punishable under Section 47(c) of the Navy Act, 1957."" Both the applicants were held guilty by the Court Martial. Applicant

Ankit Kumar was sentenced to undergo Rigorous Imprisonment for 12 months, dismissal from Naval Service and to suffer consequential penalties.

Kundan Kumar was sentenced to undergo Rigorous Imprisonment for 18 months, to be dismissed from Naval Service and to suffer consequential

penalties involved therein.

Present 0As have been filed by the applicants for setting aside the charge sheet, findings and sentence passed against the applicants with the prayer

to quash the findings and sentence dated 15.04.2019, to place on record the entire Court Martial Proceedings and to provide a copy to the applicant so

as to enable the applicant to prepare the appeal for reinstatement in service and impose any lesser punishment upon them.

6 Along with the OA, the applications in hand have been filed for suspending their sentence and releasing them on bail.

Learned counsel for the applicants submitted that since the applicants have been sentenced to undergo rigorous imprisonment for a period of less

then three years, therefore, under Section 389 Cr.P.C., their sentence is liable to be suspended and they be released on bail.

It is further submitted that when the incident took place, the applicants were not aware about the identity of either the officer, who was in a civil

area and attired in civilian clothes, or the members of the mob which gathered, who seemed to be all civilians to them. During the fight, identity card of

the applicant Ankit Kumar was taken away and thereafter, the civil police took all the persons to Naval Base Mumbai's 'Tiger gate. He was handed

over to the Provost Marshal, and MLC was conducted It was only at this point of time, he was informed that the concerned person was a Naval

Officer.

Challenge has been made to the Court Martial Proceedings on a number of counts, with which we are not concerned at this juncture.

Learned counsel for the respondents., on the other hand, submits that the applicants belong to the Navy, as such they are governed by the Armed

Forces Tribunal Act, 2007(in short, 'AFT Act'). Reference is made to the statement of objects and reasons for enacting the Navy Act. Since it is a

Special Act, hence general provisions incorporated in Cr.P.C. has no application.

It is further submitted that the application in hand has been moved under Section 15(3) of Armed Forces Tribunal Act, 2007, which is not

applicable to the instant case as the applicants have already been convicted by Court Martial whereas sub clause (3) of Section 15 only empowers the

Tribunal to grant bail to any person prior to his conviction. Reliance is placed on a judgment passed by Honble High Court of Gauhati on 12.02.2008 in

case titled as Dinesh Goyenka vs. State of Assam MANU/GH/0113/2008. It is further submitted that the offence committed by the applicants are

grave and serious in nature as the allegations against them are of assaulting a superior officer, hence they are even otherwise not entitled to be

released on bail.

Rebutting the submissions of learned counsel for the respondents, counsel for the applicants submitted that if the arguments of counsel for the

respondents are accepted as correct, then the Tribunal will have no power to grant bail to any convict except under Section 15(3) of the Act which is

prior to conviction. Sub-clause 6 of this Section provides for suspension of sentence but this sub clause does not provide as to what will be the

consequence if the sentence is suspended and the bail is not granted. Moreover, Section 5 of Cr.P.C.is not applicable because as per this Saving

Clause, if there is any provision to the contrary in the Special Act, only then the provisions of Cr.P.C. will not apply but there is no contrary provision

in the AFT Act, 2007 which debars the Tribunal to grant bail. Therefore, provisions of Section 389 Cr.P.0 are applicable. Since the sentence awarded

to the applicant is less than three years, therefore, they are entitled to be released on bail. Reliance is placed on an order dated 5.10.2017 passed by

AFT RB, Lucknow in Capt Trilok Dixit vs. Union of India and others (TA No. 17 of 2015).

We have given our considerable thoughts to respective submissions of the counsels for the parties and have carefully perused the record.

In order to determine the question as to whether the Tribunal, by virtue of the provisions of Section 389(1) Cr.P.C. can suspend the sentence

passed against the convict under the Navy Act, it will be advantageous to reproduce Section 389 Cr.P.C. which reads as under:-

Suspension of sentence pending the appeal; release of appellant on bail:-

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the

sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted

person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on _

bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the

Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be

excluded in computing the term for which he is so sentenced.

A careful reading of this Section makes it clear that when a person is convicted for a period of imprisonment not exceeding three years and the

convicted person satisfies the court that he intends to present an appeal, the Court shall, ordinarily allow the convict/the person to go on bail for such

period as will, afford sufficient time to the convicted person to present an appeal and obtain orders of the Court. The only question left for

consideration is whether the Saving Clause as incorporated in Section 5 of Cr.P.C, debars the Tribunal from suspending the sentence and grant bail to

the applicants. Reference is made to Section 5 of Cr.P.C. for submitting that since the applicants are governed by special law, hence general

provisions of Cr.P.C. will not apply, which is a Saving Clause and reads as under:-

Saving Nothing contained in this Code shall, in the absence of a specific pinvision to the C0f7trary, affect any special or local law for the time being in

force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

A bare perusal of this Saving Clause goes to show that if there is a specific provision to the contrary as contained in Cr.P.C., then the special

provision shall prevail. Learned counsel for the respondents have relied upon sub clause (3) and (6) (e) of Section 15 of the Act for submitting that the

Tribunal has no power to suspend the sentence. In order to appreciate this submission, it will be relevant to reproduce both the sub clauses 'which are

extracted below:-

(3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it

considers necessary. Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of

an offence punishable with death or imprisonment for life.

(4) xxxx

(5) xxxx

(6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to

(a) Xxxx

(b) Xxx

(c) Xxx

(d) Xxx

(e) suspend a sentence of imprisonment.

If the submission of counsel for the respondents is accepted, then although the Tribunal has power to grant bail to any person prior to his

conviction under Section 15(3) of the Act but after conviction under Rule 6(e), the Tribunal can only suspend a sentence of imprisonment but not grant

bail. The sub clause does not stipulate as to what will be the effect of suspension of sentence of imprisonment. In our considered opinion, if the

Tribunal is not competent to pass an order of bail, no purpose will be served by only suspending the sentence of imprisonment, therefore, when this sub

clause empowers the Tribunal to suspend the sentence of imprisonment, it is implicit that it has power to grant bail also

Moreover, there is no provision contrary to Cr.P.C. in the AFT Act, which is a special provision, therefore, the saving clause as incorporated in

Section 5 of Cr.P.0 will have no application.

Dinesh Goeyanka (supra) relied upon by the counsel for the respondents was a case where the applicant was convicted under Section 20(b)(ii)

(B) of the NDPS Act for having been allegedly found in possession of ganja (Cannabis) and was convicted for the said offence and sentenced to

suffer rigorous imprisonment for three years and fine. The order was challenged by filing an appeal, along with which an application under Section

389(1) Cr.P.C. was moved for suspension of sentence and release on bail. Question before Hon'ble High Court of Gauhati was whether Section 32-A

of NDPS Act completely bars jurisdiction of the appellate Court to suspend by invoking the provisions of Section 389(2) Cr.P C., the sentence passed

against a person following his conviction for an offence under NDPS Act. Section 32-A of NDPS Act provided as under:-

32A. No suspension, remission or commutation in any sentence awarded under this Act. Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this

Act (other than section 27) shall be suspended or remitted or commuted.

A cursory reading of Section 32-A clearly shows that notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law

for the time being in force, but subject to the provisions of Section 33, no sentence, awarded under the NDPS Act (other than Section 27), shall be

suspended, remitted or commuted. Section 27 NDPS Act.

Honble High Court noted the provisions of Section 389 Cr.P.C. and observed that the trial Court which convicted the accused for less than three

years ordinarily allow the convicted person to go on bail so as to afford him sufficient time to present an appeal. However, things are different when

an appeal is preferred and at that juncture, the appellate Court has to assign reason in writing, if he has to suspend the sentence. It went on to observe

that upon suspension of sentence, the convicted person has to be directed by the appellate Court to be released on bail or on his own bond unless his

detention is required in any other case. On factual matrix of the case, the sentence was not suspended and the application was dismissed.

However, this judgment has no application to the facts of the present case inasmuch as while Section 32-A of the NDPS Act started with non-

absente clause and provide that notwithstanding anything contained in the Cr.P.C. or any other law for the time being, no suspension remission or

commutation in any sentence awarded under that Act was to be granted. Things are not so because the Armed Forces Act does not debar the

Tribunal to suspend the sentence, which is clear from Section 15(6)(e) of the Act and specifically provided for grant of bail to a person accused of

offence and in Military custody under Section 15(3) of the Act.

In Capt. Trilok Dixit (Supra) relied upon by counsel for the applicant, the question for consideration before the Regional Bench of Lucknow, AFT

was whether provisions of Section 32 of the Cr.P.C, will apply to Court Martial proceedings. Before the Bench, several cases were cited by the

respondents for submitting that provisions of Section 428 Cr.P.C. shall not be applicable in the Cr.P.C. proceedings. After taking note of various

judgments rendered by Hon'ble Supreme Court, it was observed that in the case where the provisions of special law relating to Court Martial are

absolutely silent, then the provisions of Code of Criminal Procedure may operate in the field for that limited purpose. But where there is any provision

contrary to the general law in the special law governing the Court Martial, then the provision of special law shall be applicable. On the factual matrix

of the case, it was observed that since it was a matrimonial dispute which has resulted in a compromise between the parties, the GCM ought to have

considered the compromise.

As observed in preceding paras, there is absolutely no provision in the Navy Act/Navy Rules or Navy Regulations or AFT Act which debars the

Tribunal to suspend the sentence of convict and to grant bail, therefore, the provisions of Cr PC. will operate in the field for this limited purpose.

Learned counsel for the respondents had also referred to the testimony of certain witnesses recorded during the Court Martial in order to canvas

that the allegations against the applicants are serious in nature. However, we refrain ourselves from expressing any opinion on the same, lest it may

affect the merits of the case

The applicants are in custody since the date of their conviction. It is not even the case of the respondents that the antecedents of the applicants

are not clean. Only submission is that the allegations against the applicants are serious in nature due to having assaulted a superior officer. However,

the proceedings have been challenged by the supplicant on number of counts as detailed in the OA, therefore, the sentence of rigorous imprisonment

of the applicants are liable to be suspended for a period of four weeks from the date of order in order to enable them to prefer an appeal against their

conviction and sentence. Accordingly, the applicants are ordered to be released on bail for four weeks on furnishing personal bond with one surety for

a sum of Rs. 50,000/- to the satisfaction of the Principal Registrar, AFT, PB, New Delhi. This shall be subject to the following conditions:-

(i) that the applicants will not commit any offence while on bail and shall not indulge in any act of violence by words or physical act against any officer

of the Indian Navy.

(ii) that they will file an affidavit giving their local address in Delhi as well as their permanent address along with phone number.

(iii) that the applicants will not try to approach any of the witnesses who have testified against them with a view to threaten or intimidate them.

(iv) that the applicants shall also surrender their passport, if any, to the Principal Registrar, Armed Forces Tribunal (PB) New Delhi.

Needless to say, that the benefit of the aforesaid suspension of sentence and bail is confined to a period of four weeks in order to enable them to

prefer an appeal.

It is made clear that if no appeal is preferred by the applicants within the stipulated period, they will surrender to the concerned Jail authorities,

MA stands disposed off .

Copy of this order be given dasti to the counsel for the parties.

Pronounced in open Court on 21st August,2019