Rajasthan High Court - Jodhpur
Nk (Chef Community) Madhu Sudan Singh vs Union Of India (2023:Rj-Jd:43832-Db) on 14 December, 2023
Bench: Manindra Mohan Shrivastava, Rajendra Prakash Soni
[2023:RJ-JD:43832-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 18161/2023
Nk (Chef Community) Madhu Sudan Singh S/o Late Shri
Kamimni Babu Sinha, Aged About 41 Years, R/o Village
Mohanpur, P.s. Bhudneshwar Nagar, P.s. Kathigarh, Distt. Cachar
(Assam)- 788817, Through His Wife Bina Bala Sinha, Aged 41
Years. C/o Shri Shardul Singh, R/o 5-Z, Officers Colony, Abohar
Road, Sriganganagar. (Presently Lodged In Central Jail, Sri
Ganganagar).
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of
Defence, New Delhi-110011.
2. The Chief Of The Army Staff, South Block, Ihq Of Mdo
(Army), Dhq Po, New Delhi 110011.
3. General Officer Commanding In Chief, Hq Southy Western
Command, Pin 908546, C/o 56 Apo.
4. General Officer Commanding, 16 Rapid, Pin-908416, C/o
56 Apo.
5. Commanding Officer, 23 Sikh, Pin 912223, C/o 56 Apo.
----Respondents
For Petitioner(s) : Mr. K.K. Shah with
Mr. Ramniwas
For Respondent(s) : Mr. Mukesh Rajpurohit, Dy. SG
HON'BLE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
14/12/2023
1. This is an application for suspension of sentence of
conviction ordered by the General Court Martial on 05.09.2021.
2. Learned counsel for the petitioner would submit that the
petitioner has been convicted for commission of offence
[2023:RJ-JD:43832-DB] (2 of 3) [CW-18161/2023]
punishable under Section 69 of the Army Act read with Section 10
of the POCSO Act.
3. He would submit that the conviction was ordered on
05.09.2021 and by that time, he had undergone almost one year
of pre trial detention. Though he has preferred an appeal after his
conviction, which remained pending and till date, it has not been
decided. In this manner, without there being a decision on appeal,
the petitioner has undergone more than three years and three
months out of five years of jail sentence awarded to him. He
would further submit that the appeal has not been decided and
the application for suspension of sentence has also been rejected.
Therefore in such circumstances, only on the ground that the
petitioner had undergone more than half of the jail sentence
awarded to him, application for suspension of sentence ought to
be allowed by the Armed Forces Tribunal.
4. Learned counsel for the respondents would submit that the
application for suspension of sentence has been rejected prima
facie on the basis of the judgment of conviction and order of
sentence was passed, taking into consideration the evidence of the
minor (PW-6), the order of suspension does not warrant any
interference.
5. We have gone through the order passed by the Armed Forces
Tribunal and also the material on record.
6. The appeal has already been admitted and is pending for
final hearing before the Tribunal. However, in the meantime, the
petitioner has undergone more than three years and three months
of jail sentence out of total sentence of five years which has been
awarded. It is thus, seen that the petitioner had undergone 2/3rd
[2023:RJ-JD:43832-DB] (3 of 3) [CW-18161/2023]
of the jail sentence awarded on him. The appeal however so far
has not been heard finally. Therefore, we are of the view that
only on this ground, the petitioner is entitled to grant a bail
otherwise the very right of appeal may be completely frustrated
and rendered illusionary where neither the appeal is heard finally
nor bail is granted and the person undergoes the entire period of
jail sentence without hearing.
7. We further take into consideration the nature and gravity of
the allegation also and find that the maximum sentence awarded
for the alleged commission of offences is seven years and the
petitioner has been awarded minimum of the sentence.
8. Taking into consideration the facts and circumstances of the
case and the nature of alleged act on the part of the petitioner, we
are of the view that the sentence awarded to the petitioner was
liable to be suspended, particularly in view of the fact that he has
undergone three years and three months of jail sentence out of
five years awarded to him.
9. Accordingly, the petition is allowed and the order of the
tribunal is set aside. The substantive jail sentence awarded to the
petitioner is directed to be suspended and he be released on bail
on furnishing a personal bond of Rs.50,000/- with the one local
surety in the like amount to the satisfaction of Jailer, District Jail,
Sriganganagar.
(RAJENDRA PRAKASH SONI),J (MANINDRA MOHAN SHRIVASTAVA),ACJ
129-nitin/divya/-
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