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Judgment
By way of the instant petition, the petitioner is seeking quashment of order dated 7th of January, 2019 passed by the Armed Forces Tribunal whereby his application seeking suspension of sentence imposed upon conviction by the Summary General Court Martial (hereinafter referred to as "SGCM" by its order dated 25th October, 2018 was simply adjourned.
Issue notice to show cause as to why the writ petition be not admitted to hearing.
Mr. Vishal Sharma, learned Assistant Solicitor General of India accepts notice on behalf of the respondents.
Having regard to limited relief which has been prayed for in the present petition, with the consent of learned counsel for the parties, this petition is taken up for final consideration.
Before considering the petition, we may briefly note the factual matrix laid by the writ petitioner. Since the 23rd of August, 2013, the petitioner then a Major with the Indian Army was as posted Assistant Garrison Engineer (Independent) Reasi. On the 8th of January, 2016, upon a search of luggage of Havildar (DED) Modi Srinu of AGE (I) Reasi, who was proceeding on 22 days Casual Leave, an amount of Rs. 9,78,000/- were recovered from his possession. Havildar (DED) Modi Srinu frequently changed his stands with regard to the source of money. He initially stated that the money belonged to a Contractor and he was merely carrying it outside Garrison for payment to the labourers. When the Contractor denied, he changed his stance and stated that it belonged to the petitioner and he was supposed to hand over the same to somebody in Jammu. At the time of raising of a CMP report, Havildar Srinu confessed that the money belonged to him and he had taken it on loan from three different Civillian Contractors whose names were also recorded.
On 9th of January, 2016, a Court of Inquiry (hereinafter referred to as COI‟), was ordered to investigate the circumstances in which Havildar (DED) Modi Srinu was found in possession of Rs. 9,78,000/- on 8th of January, 2016. During the course of COI, on 11th of January, 2016, Havildar (DED) Modi Srinu, was examined as a witness No.1 when he made a detailed statement admitting that the said amount of money recovered from his possession had been taken by him on loan from civilian contractors to purchase Flat/Plot. He disclosed the breakup of the recovered money. The named contractors were also examined by the COI and only one of them Mr. Rajinder admitted to have extended a loan of Rs. 3,00,000/- to Havildar (DED) Modi Srinu as claimed by him.
It was only on the 31st of January, 2016 that Havildar (DED) Modi Srinu made an additional statement before the COI once again changing his version and for the first time claiming that the amount of Rs. 7.00 lakhs out of the recovered amount had been given to him by the petitioner which he was supposed to deliver at Pune.
As a result, on the 6th of June, 2016, the petitioner was attached to 54 RR (MADRAS) for disciplinary action and placed under suspension. The Summary of Evidence and Additional Summary of Evidence were also recorded which concluded on 9th of August, 2017.
By an order dated 25th of May, 2018, the SGCM for trial of the petitioner was ordered which assembled on 9th of June, 2018.
The petitioner was tried on a charge under Section 69 of the Army Act read with Section 5(2) and Section 5(1)(e) of the Prevention of Corruption Act, Samvat 2006.
By an order dated 25th of October, 2018, the petitioner was convicted by SGCM for commission of the offence with which he was charged, tried and was sentenced to cashiering and rigorous imprisonment of one year. By an order dated 24th of January, 2019, sentence of rigorous imprisonment was enhanced to two years.
The petitioner submits that the findings and sentence imposed by SGCM are pending confirmation before the competent authorities.
On the 22nd of November, 2018, the petitioner filed an Original Application (Appeal) being No.650 of 2018 before the Regional Bench AFT, Jammu under Section 15 of the Armed Forces Tribunal Act, 2007. Along with the appeal, the petitioner has also filed an application under Section 15(3) read with Section 15(6) of the Armed Forces Tribunal Act, 2007 and Rule 25 of the Armed Forces Tribunal Rules, 2008, seeking suspension of the sentence awarded to him.
This application was taken up by the Tribunal on the 29th November, 2018, when opportunity was given to the respondents to file objections thereto and the matter was adjourned to 7th January, 2019.
Contending that the matter, involving liberty of a citizen was unreasonably delayed, the petitioner had filed a writ petition being OWP No.2525/2018. This writ petition came to be listed before us on 10th of December, 2018, when observing that the respondents would be entitled to verify the stated facts and that the matter stood posted on the first available date to the Tribunal, we had refused to interfere with the impugned order. The writ petition was consequently dismissed.
We are informed that on the 7th January, 2019, objections to the application were filed by the respondents before the Armed Forces Tribunal. A grievance is made by Mr. Kohli, learned counsel appearing for the petitioner that despite the same, the matter was not heard and the application for suspension of sentence was simply adjourned by two months to 25th February, 2019.
We are informed by learned counsel for the petitioner that the petitioner had undergone 543 days of sentence under arrest before the trial, even before the assembly of SGCM. It is submitted that, on assembly of SGCM, the petitioner was placed in military custody on 9th June, 2018 and that he remained in military custody thereafter for a period of 129 days during the period of trial.
Having been sentenced on 25th of October, 2018, the petitioner has undergone further arrest of 99 days. According to Mr. Kohli, the petitioner has therefore undergone 543 days in custody in close arrest before the trial being a period of one year and six months. He was in custody for over four months during trial and thereafter, has been in custody for about three months after sentencing.
It is the submission of Mr. Kohli that consequently the petitioner has actually already undergone custody way beyond the total sentence awarded to him. The contention is that keeping him in confinement would work extreme unfairness to him.
It is submitted by Mr. Sharma that the writ petition of the petitioner ought not to be entertained in view of the remedy available to the petitioner under Section 182 of the Army Act, 1950. Mr. Kohli submits that given the fact the petitioner has availed the remedy of appeal under the Armed Forces Act, where his interim application for suspension of sentence has been unreasonably and unnecessarily adjourned and delayed, the remedy under Section 182 of the Army Act is not an alternative efficacious remedy.
Mr. Sharma, learned ASGI, appearing for respondents would vehemently dispute this submission and submits that the petitioner has only undergone 129 days in military custody and 99 days post conviction.
The record contains a series of Part-II orders so far as the suspension of the petitioner is concerned. The first among them is an order dated 2nd June, 2016 (placed at page 25 of the paper book), whereby the petitioner has been suspended from duty under close arrest with effect from 6th June, 2016. He was apparently removed from this suspension from duty with effect from 4th September, 2016. The second order placed on record shows that the petitioner was again suspended from duty and placed in close arrest with effect from 15th of November, 2016 and he remained in this position till 13th February, 2017. Several other orders to the same effect have been placed on record from page 25 to page 44 of the present record.
Be that as it may, even if the submission of Mr. Sharma, learned ASGI is accepted, the petitioner would admittedly have undergone "close arrest" of more than seven months as against the total sentence of two years of imprisonment. It cannot be denied that during "close arrest" the liberty of the petitioner stood curtailed.
The record, thus, suggests that the petitioner has been in and out of custody under the orders of close arrest even from the period between 6th of June, 2016 to 5th of November, 2018. The admitted position is that after conviction, pending its confirmation, the petitioner has been in military custody for a period of over seven months as against the total sentence of two years. The application for suspension of sentence which first came up for consideration before the Armed Forces Tribunal on 29th November, 2018 when it could not be decided has been adjourned for around two months even though objections have been filed by the respondents.
There is nothing on the record before us to show that the petitioner has obstructed the course of justice during the pendency of the proceedings before the SGCM.
In view of the above, there is no apprehension that the petitioner will flee from justice and would not be available to undergo the remaining period of sentence, if the appeal is decided against him.
Unreasonable incarceration which violates the constitutionally guaranteed right to life and liberty of an individual deserves to be avoided. The same is also the mandate of the law and jurisprudence of binding precedents from the Supreme Court.
In view of the above it is 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.
This petition is, disposed of in the above terms.