Delhi High Court
Nabin Kishor Chouhan vs Union Of India And Ors on 1 February, 2016
Author: Hima Kohli
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 802/2016 & CMs No.3490-91/2016
Decided on : 01.02.2016
IN THE MATTER OF:
NABIN KISHOR CHOUHAN ..... Petitioner
Through : Mr. Rajinder Kumar, Advocate
versus
UNION OF INDIA AND ORS ..... Respondents
Through : Mr. Vikas Mahajan, CGSC with
Mr. Rohan Gupta, Advocate
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE SUNIL GAUR
HIMA KOHLI, J. (Oral)
1. The present petition has been filed by the petitioner assailing the
order dated 6.1.2016 passed by the respondent No.2/Director General,
SSB (Appellate Authority), duly communicated to the petitioner by the
respondent No.4/Commandant based at Darjeeling, West Bengal,
rejecting his request submitted vide application dated 26.11.2015 for
suspending his sentence to enable him to exercise his statutory right
of filing an appeal.
2. Learned counsel for the petitioner submits that vide order dated
19.11.2015 passed by the respondent No.4 (Disciplinary Authority),
the petitioner was tried by a Summary Force Court and has been
found guilty on the charge of Section 13(1) of the Prevention of
Corruption Act, 1988 and under Section 43 of the SSB Act, 2007, and
awarded a punishment of rigorous imprisonment for one year in civil
prison and for dismissal from service under Section 51(1)(b)(c) of SSB
Act, 2007.
3. In terms of the aforesaid order, the petitioner was placed in
imprisonment on 22.11.2015. While in jail, the petitioner had
forwarded a representation dated 26.11.2015 asking for suspension of
sentence of his imprisonment under Section 144 read with Section 145
(2) of the SSB Act, 2007, which has been rejected by the respondent
No.2 (Appellate Authority), vide Memorandum dated 6.1.2016.
4. It is pertinent to note that this is the second writ petition filed by
the petitioner in this Court. The first petition filed for the same relief,
registered as W.P.(C) No. 260/2016 was dismissed as withdrawn vide
order dated 12.1.2016, with liberty granted to the petitioner to
approach the respondent No.3/IG to seek suspension of his sentence
to enable him to file an appeal in terms of the SSB Act and Rules,
within two week. Within one week from the date of passing of the said
order, the present petition has been filed in this Court.
5. It has been enquired from learned counsel for the petitioner as
to why would the present petition be maintainable when liberty has
already been granted to the petitioner in terms of the order dated
12.1.2016. In reply, counsel for the petitioner submits that on
12.1.2016, the petitioner was unaware of the fact that an order dated
6.1.2016 had been passed by the respondent No.2 rejecting his
request for suspension of the imprisonment. It is submitted that the
aforesaid order passed by the respondent No.2 was communicated to
the petitioner by the respondent No.4 under cover of letter dated
8.1.2016 received on 14.1.2016, whereafter, the present petition has
been filed.
6. Counsel for the respondents, who appears on advance notice,
opposes the present petition on the ground that a glance at Section
144 of the SSB Act that refers to suspension of sentence of
imprisonment reveals that it is not mandatory, but only directory in
nature and it is the discretion of the competent authority whether to
suspend the sentence or not. He states that once the Director General,
SSB had exercised such a power by passing a reasoned order, it is not
open to judicial review. He further states that in any case, the
petitioner has not taken any steps to file a statutory appeal, though
the entire records were admittedly made available to him on
23.12.2015, while in jail. He adds that the respondents are ready and
willing to give the counsel engaged by the petitioner access to him in
jail for consultation for purposes of drafting the statutory appeal.
Lastly, counsel for the respondents states that the respondents have
an apprehension that if the sentence of the petitioner is suspended, he
is likely to abscond.
7. Having regard to the submission made by the counsel for the
respondents, we are not inclined to entertain the present petition for
suspension of sentence of imprisonment. However, the petitioner shall
be entitled to obtain legal advise for drafting a statutory appeal for
which the respondents shall give access to the lawyer engaged by him,
as and when requested.
8. The petitioner shall be at liberty to file a statutory appeal within
the stipulated timeline. Once the appeal is filed, the same shall be
considered by the Appellate Authority in accordance with law and
disposed of, under written intimation to the petitioner.
9. The writ petition is disposed of, along with the pending
applications.
(HIMA KOHLI)
JUDGE
(SUNIL GAUR)
JUDGE
FEBRUARY 01, 2016/sk/ap
