VK Sharma vs Union Of India And Others

Heard on the OA (Appeal) and the prayer for bail invoking the appellate jurisdiction of this Tribunal under Section 15(3) of the Armed Forces

Tribunal Act, 2007 (hereinafter referred to as the AFT Act').

In this appeal, the appellant, an Air Warrior in the Indian Air Force, holding the rank of 'Sergeant (Sgt)', has called in question the findings and

sentence dated 18.09.2020 recorded on the General Court Martial (GCM), which found him guilty of the charges levelled against him. Serious charges

of embezzlement were alleged against the appellant and based on the findings recorded in the GCM, the following punishments have been imposed on

the appellant, namely:

(i) To be reduced to ranks;

(ii) To be dismissed from service and

(iii) To suffer Rigorous Imprisonment for 7 years.

Confirmation of the sentence and the proceedings are pending before the AOC-in-C, TC, Bengaluru and, without awaiting the outcome of the

confirmation, the appeal has been filed, primarily on the ground that for the purpose of preparing his regular appeal and taking recourse to the statutory

remedies available, the appellant has to consult a lawyer, brief him and after instructing him, get the appeal prepared and all other formalities

completed for filing of the appeal, therefore, for the said purpose, temporary bail of three months is sought for pending finalisation of the confirmation.

Respondents, represented by Shri Anil Gautam, learned counsel, on advance notice, raises preliminary objections and submits that, at this stage, this

appeal is itself not maintainable as after the confirmation is ordered by the Competent Authority, the appellant has statutory remedies against the

impugned action and without exhausting the statutory remedies, bypassing the provisions of Section 21 of the AFT Act, this appeal, at this stage, is not

maintainable. That apart, Shri Gautam points out that for the purpose of preparation of the appeal, grant of bail, looking to the seriousness of the

allegations levelled against the appellant and nature of the punishments imposed, it is not appropriate to release the appellant on bail. On the contrary,

all facilities can be provided to him for preparation of the appeal while in custody itself and the respondents have no objection in case any assistance is

required for the same while keeping the appellant in custody. That apart, even if the appellant is shifted to the Civil Jail, necessary assistance can be

provided to the appellant to get the appeal prepared from the jail itself by the Jail authorities as per the rules in vogue. Accordingly, learned counsel for

the respondents submits that, at this stage, grant of bail for the purpose of preparing/filing of the appeal is not necessary.

We have heard the learned counsel for the parties on the issues and on bestowing our anxious consideration, we are of the considered view, that at

this stage, looking to the serious allegations levelled against the appellant and the punishments awarded, bypassing the statutory remedies available to

him in law, entertaining this appeal only for the purpose of granting temporary bail, that also for the purpose of preparation/filing of the appeal, grant of

bail is not necessary. After the confirmation is ordered by the Competent Authority, appellant has to exhaust the statutory remedies available to

challenge the proceedings of the GCM and the punishments through the departmental challenge and it is only after exhausting these remedies that he

can invoke the jurisdiction of this Tribunal under Section 15 of the AFT Act. In total disregard to the laid down statutory provisions, it is not a fit case

where discretion as is available to us can be exercised and permit the applicant to invoke the jurisdiction of this Tribunal.

That apart, grounds stated for release of the appellant on temporary bail, in our considered view, are not substantial enough to grant him bail as

preparation of appeal can always be facilitated while in custody also and in this age of information and technology, we are sure that the authorities will

also render him assistance in getting his appeal prepared/filed.

Taking note of all the circumstances, we see no reason to exercise our jurisdiction in the matter at this stage. Accordingly, without entering into

various averments made on merit and keeping all the legal issues open to be considered at appropriate stage as and when required, we refrain from

interfering in the matter for grant of temporary bail. Accordingly, the appeal stands disposed of with the aforesaid.

Copy of this order be given `Dasti' to the learned counsel for the parties.