Bhagwat Prasad Mishra vs Union Of India & Ors.

Delay condoned.

Application seeking leave to appeal is allowed.

Heard learned counsel for the parties.

These appeals take exception to the judgment(s) and order(s) dated 16.09.2016 in Original Application (A) No.254/2015, dated 20/03/2017 in Review Application No.100 of 2016 and dated 12.04.2017 in M.A. Nos.580/2017 and 581/2017 in Original application(A) No.254/2015 passed by the Armed Forces Tribunal, Regional Bench, Lucknow.

For the nature of order we propose to pass, it is not necessary to dilate on the factual matrix of the case.

Suffice it to observe, that the appellant faced Court Martial on account of remaining absent from 25.06.2001 to 07.07.2001 without taking leave from the competent authority.

The appellant was found guilty of the said charge and vide order dated 21.01.2002 was directed to severe sentence of reduction to the rank of Corporal and being severely reprimanded.

The appellant assailed the stated conviction as well as the sentence by way of Original Application No.254/2015 before the Armed Forces Tribunal, Regional Bench Lucknow. The Tribunal rejected the said Original Application. Even the review petition filed by the appellant came to be rejected.

In the present appeals, the appellant, in all fairness, contends that he may be satisfied if the sentence is modulated being excessive and disproportionate, else if the same is set aside and the appellant is relegated to the competent authority as no reason is forthcoming as to why the sentence of reduction to the rank of Corporal has been imposed despite option of imposing other sentences was available to the authority under Section 73 of the Armed Forces Act, 1950.

Learned Additional Solicitor General appearing for the respondent(s) would contend that the sentence imposed is just and fair, as it can be safely assumed that the authority must have taken into account all the circumstances of the case. He submits that when the impugned sentence was passed, there was no requirement of assigning reason(s) for imposing particular sentence. Even so, in our opinion, in view of the settled legal position, if more than one option is available, the authority is expected to indicate some reason as to why it chose to impose severe punishment and not the minimum punishment for the charges proved against the concerned delinquent official.

Accordingly, we set aside the impugned Judgment(s) and order(s) of the Tribunal and also the sentence awarded by the General Court Martial and instead relegate the appellant before the General Court Martial to reconsider the quantum of punishment/sentence, in the peculiar facts of the present case, and also assign reason(s) therefor.

The Competent Authority may take steps to expeditiously constitute a General Court Martial for consideration of quantum of punishment/sentence to be awarded in this case to the appellant.

We make it clear that we are not expressing any opinion on the finding of guilt and the conviction as recorded in the proceedings, which stands concluded against the appellant. The only question to be considered by the General Court Martial is about the quantum of punishment/sentence.

It will be open to the appellant to submit representation for taking sympathetic view of the matter and to impose minimum sentence/punishment. That be considered appropriately as per law.

The appeal(s) and pending application(s) are disposed of.

No order as to costs.