Sub Maj Akhaya Kumar Pandey Retd. v. Union of India

1. The present petition has been preferred against the orders dated 23.11.2022 and 30.11.2022 passed by the learned Armed Forces Tribunal vide which the appeal preferred by the petitioner under the provisions of Section 15 of the Armed Forces Tribunal Act, 2007 was admitted, however, his application seeking suspension of sentence during pendency of the appeal was dismissed.

2. It pleaded in the present petition that the petitioner had retired from service on 31.08.2020. Petitioner has been tried for two charges, first under Section 63 of the Army Act for an act prejudicial to good order and Military Discipline and second, under Section 69 of the Army Act by invoking the provisions of Section 13 (2) read with Section 13(1) (b) of the Prevention of Corruption Act, 1988. Vide order dated 06.07.2022, petitioner was held guilty of both the charges and was awarded rigorous imprisonment of five 16:27 years and six months and Dismissal from Service. Petitioner’s sentence was confirmed on 01.10.2022 without any remission and was promulgated on 09.11.2022 and he was sent to Central Jail, Dimapur. Being aggrieved, petitioner approached the learned Tribunal and his appeal was admitted on 11.11.2022, however, his application for suspension of sentence was rejected. Thus, the petitioner is before this Court.

3. During the course of hearing, learned counsel appearing on behalf of petitioner has submitted that the learned Tribunal while rejecting petitioner’s application for suspension of sentence vide judgment dated 23.11.2022 has opined on the merits of the case as if the appeal is being decided and despite noting the fact that the petitioner has remained in military custody for 545 days post sentence, has arbitrarily rejected his prayer for release on bail. Learned Counsel next submitted that for the offence under Section 13 (1) (b) of the Prevention of Corruption Act, 1988 (since amended from time to time), the punishment prescribed is four years, but in the present case harsh punishment of five years and six months has been imposed upon the petitioner so that he cannot be released on bail even on the ground of having completed half of the sentence. Further submitted that though the learned Tribunal noted this contention but did not appreciate it in its true sense.

4. The aforesaid prayer of petitioner’s counsel is disputed by the officer appearing on behalf of the respondents who submits that the allegations levelled against the petitioner are grave in nature and do not call for leniency by this Court and hence, the present petition deserves to be dismissed.

5. At this stage, learned counsel appearing on behalf of the petitioner has pleaded that the petitioner is the sole earning member of his family and has the responsibility to look after his old aged parents. 16:27

6. Upon hearing learned counsel for the petitioner and on perusal of material placed before this Court, we find that out of sentence of five years and six months of rigorous imprisonment imposed upon the petitioner, he has already undergone sentence of two years and two months. It is not in dispute that the appeal filed by the petitioner against his conviction is pending adjudication before the learned Tribunal.

7. Without commenting on the merits of the case, the sentence awarded to petitioner is suspended during pendency of hearing of the appeal and he be released forthwith by the Jail Authority subject to his furnishing bail bond in the sum of Rs.15,000/- with one surety in the like amount to the satisfaction of the Principal Registrar of the Armed Forces Tribunal.

8. It is expected that the learned Tribunal shall make all efforts to dispose of petitioner’s appeal expeditiously.

9. With aforesaid directions the present petition and pending application are accordingly disposed of.

10. A copy of this order be given dasti under the signatures of the Court Master to counsel representing both the sides. (SURESH KUMAR KAIT) JUDGE (GAURANG KANTH)

JUDGE FEBRUARY 28, 2023 r 16:27