Vikash Kumar Singh vs Union Of India And Others

Present OA has been filed by the applicant seeking release on bail/parole or suspension of sentence.

It is the case of the applicant that he was enrolled in the Indian Air Force on 12th January 2004 in the trade of Clerk/Personal Assistant. After

initial training, he was given the rank of Air Craftsman. In due course, he was promoted to the rank of Corporal (Cpl) and then to Sergeant (Sgt). He

avers that he was subjected to false and frivolous proceedings against him which culminated into a District Court Martial under the Air Force Act

1950 on a charge sheet dated 29th September 2019. The District Court Martial found the applicant guilty of 13 charges out of 26 charges and

sentenced him to suffer rigorous imprisonment for two years, dismissal from service, reduction of rank and forfeiture of arrears of pay and

allowances. The findings are subject to the confirmation of the competent authority and the applicant has been informed that the District Court Martial

proceedings have been forwarded to the competent authority through the official channel which is going to take considerable time. The applicant has

to prepare the petition under Section 161 of the Air Force Act 1950. As such, it is submitted that he be released on bail.

The application has been contested by the respondents. Maintainability of the application itself has been challenged on the ground that OA does not

disclose any grounds for challenging the finding/sentence of the Court Martial. Furthermore, proceedings of District Court Martial was concluded on

6th December 2019 and a copy of complete DCM proceedings was supplied to the applicant on 17th December 2019. It has been contended that,

without submitting any pre-confirmation petition under Section 161(1) of the Air Force Act 1950, the applicant had preferred the present OA. As on

date, the proceedings of District Court Martial have been confirmed by the Confirming Authority and the same have been promulgated to the applicant

on 21st January 2020.

Further, the applicant has not exhausted the remedies available to him under Air Force Act 1950. The present OA, without exhausting alternate

remedies is otherwise untenable. Reliance is placed on Major General Basavaraj G. Gillganchi vs. Union of India decided on 13th December 2018 in

OA No. 1256 of 2018.

It is further submitted that the charge proved against the applicant are very serious in nature as he has siphoned off public funds to the tune of Rs.

20,12,237/ -. As such, he is not entitled to be released on bail.

We have heard learned counsel for the parties and have perused the record.

Learned counsel for the applicant has referred to the provisions of Section 389 of the Code of Criminal Procedure for submitting that since the

applicant intends to prefer an appeal against the finding or court martial as per sub -Clause (3) of this Section, the applicant is entitled to be released

on bail. Reliance is placed on an order dated 21.08.2019 passed by this Tribunal in OA 744/2019 LS(UW) Ankit Kumar Vs. Union of India and

Others and OA 745 of 2019 LS(UW) Kundan Kumar Vs. Union of India and Others. It is further submitted that the applicant is languishing in jail

outside Delhi and as such, before preparing the appeal, the counsel has to be briefed by him. Therefore, at least for the purpose of preparing appeal,

applicant should be released on bail.

Countering submission of learned counsel for the applicant, learned counsel for the respondents submits that submission of learned counsel to

applicant deserves rejection and the same cannot be a ground for granting bail to the applicant as even a local lawyer can contact the applicant.

Moreover, the entire proceedings have been handed over to the applicant. Challenge has to be made as per those proceedings, only. Therefore, in the

absence of disclosing any ground as to what is the challenge to the District Court Martial proceedings, the applicant cannot be released on bail.

Having heard learned counsel for the parties, we find force in the submission of learned counsel for the respondents that in the application moved

by the applicant seeking bail, there is no challenge to the findings of the District Court Martial or the sentence awarded to the applicant.

The only plea taken in Para 5.3 of the application is that keeping the applicant in custody/close arrest is likely to affect his chances to prepare the

petition under Section 161 of the Air Force Act 1950 which is otherwise a statutory right available to him.

It has also come on record that the applicant did not move any application under Section 161 of Air Force Act and proceedings of District Court

Martial has been confirmed by the Confirming Authority and same has been promulgated to the applicant on 21st January 2020. Copy of the

proceedings of District Court Martial were already provided to the applicant on 17th December 2019.

In this scenario, it is to be seen whether the provisions of Section 389(1) of CrPC are applicable or not. In order to answer this question, it will be

advantageous to reproduce Section 389 CrPC 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 be may be exercised also be 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 inbail, 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.

In the instant case, there is no averment in the application that the applicant intends to present an appeal against the finding of the District Court

Martial. The only plea taken is that the applicant intends to prefer an application under Section 161 of the Air Force Act, 1950 which stage has already

gone. That being so, reliance placed by learned counsel for the applicant on the order dated 21st August 2019 passed in OA 744 of 2019 LS(UW)

Ankit Kumar Vs. Union of India and Others and OA 745 of 2019 L(UW) Kundan Kumar Vs. Union of India and Others does not help him. In that

case, the applicant filed the application for grant of bail for the purpose of filing appeal against finding of the Court Martial. After considering all

aspects of the matter, the applicants were granted bail for a limited period.

That being so, there are no grounds for granting bail to the applicant in order to enable him to prefer a petition under Section 161 of the Air Force

Act 1950 as that stage has already gone. Therefore, the application is dismissed.

Pronounced in open Court on 4th March 2020.