Satyam Kumar Through Shivam Kumar vs Union Of India And Others on 4 August, 2022

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Jammu & Kashmir High Court

Satyam Kumar Through Shivam Kumar vs Union Of India And Others on 4 August, 2022

1. The petitioner in this petition seeks quashing of order dated 09.03.2022 passed by the Armed Forces Tribunal, Regional Bench Srinagar at Jammu (for short, 'AFT') in M.A.No. 08/2021 passed in TA No. 231 of 2017 (SWP No. 67/2009) titled Satyam Kumar Vs. Union of India and others whereby the application for grant of bail to the petitioner has been rejected; with a further direction to the respondents to release the 2 WP(C) No. 900/2022 CM(2712/2022) petitioner on bail on such terms and conditions as are found just and proper on the ground of petitioner being in Jail for more than 16 years.

2. Factual matrix of the case is that petitioner was enrolled in the Corps of Signals in March 2004 and on completion of training was posted to Northern Command Sig. Regt in November, 2005. During the period from November 2004 to October, 2006, he was serving in the Security Section of the Unit which was responsible for guard duties at the main gate, quarter guard and Hav. Padma Rajan L was a senior NCO in the same Section. On 28.10.2006, petitioner was on guard duty at the main gate of the Unit, at around 2200 hours Hav. Padma Rajan L who was the Guard Commander on duty, observed petitioner arriving late for the guard mounting. He also noticed that petitioner was improperly dressed for duty, H Iand i.e., without his cap, web belt G Hanklets. Hav Padma Rajan L checked OF JAMMU & C O atUthe him for the same and shouted RT petitioner and asked him to do bend KASHMIR AND stretches which petitioner refused to obey and both had an altercation on LADAKH the same and Hav Padma Rajan L admonished/abused the petitioner. Meanwhile, duty NCO CQMH Mahandule reached there and asked petitioner to bend which he on his asking obeyed and then was told to proceed for his duty. At about 2340 hours on 28.10.2006, petitioner who was on duty at the main gate told his Guard Commander at the main gate, NK JS Dogra that his stomach was upset and was going to toilet. The petitioner then proceeded towards the Quarter Guard where the toilet is situated. On this pretext, he slowly entered the rest room inside the guard room in the Quarter Guard where Hav Padma Rajan L was sleeping and fired indiscriminately 20 rounds from his personal weapon due to which 3 WP(C) No. 900/2022 CM(2712/2022) Hav Padma Rajan L died on spot. After filing of the charge sheet, the court of inquiry was conducted followed by recording of summary of evidence. After recording summary of evidence, the petitioner was tried by the Summary General Court Martial wherein the petitioner was held guilty and sentenced 'to be hanged till death'. Being aggrieved, petitioner filed pre-confirmation petition under Section 64 of the Army Act to the Defence Secretary, Chief of Army Staff on 02.01.2008, which came to be rejected vide order dated 11.08.2008 on the recommendations of the Central Government, however, the sentence imposed upon the petitioner by the Summary General Court Martial was commuted from 'hanged till death' to 'life imprisonment'. Petitioner filed SWP No. 67/2009 before this Court wherein the petitioner had sought directions to quash the order dated 11.08.2008 wherebyHthe I Gsentence H was commuted on the pre-

OF JAMMU & CO confirmation petition of the U R T from 'hanged till death' to 'suffer petitioner KASHMIR AND imprisonment for life'. However with the applicability of the LADAKH Administrative Tribunal Act in the State of Jammu and Kashmir, the aforesaid writ petition came to be transferred to the Armed Forces Tribunal, Regional Bench Srinagar at Jammu in the year 2017 which came to be re-numbered as TA No. 231/2017.

3. It is contended that since the Armed Forces Tribunal Regional Bench Srinagar at Jammu is not a permanent Bench and sits once or twice in a month, as such, since 2017 the aforesaid writ petition, which was transferred, could not be considered due to paucity of time. As such, the petitioner who is behind the bars since 2006 was constrained to file MA No.08/2021 before the Armed Forces Tribunal Regional Bench Srinagar 4 WP(C) No. 900/2022 CM(2712/2022) at Jammu seeking bail primarily on the ground that the petitioner is inside Jail for more than 16 years and appeal/writ petition is not likely to be heard soon.

4. Learned counsel for the petitioner contended that the learned Tribunal without considering the true spirit of the application and also not taking into consideration the fact that the petitioner has already undergone 16 years of incarceration and writ petition/appeal is not likely to be heard soon because of non-availability of permanent Bench, dismissed MA No. 08/2021 on the ground that the offence committed is heinous in nature and the petitioner belonging to Bihar is likely to abscond and not serve the rest of the sentence in case the appeal is dismissed and the Tribunal while rejecting the application has further proposed to hear the main appeal itself. HIGH OF JAMMU &

5. C O Ufacts In the backdrop of the aforesaid R Tand circumstances, it is argued that KASHMIR AND the petitioner is aggrieved of the order dated 09.03.2022 on the grounds LADAKH that the same is bad in the eyes of law and is liable to be set aside as the learned Tribunal has decided the MA No.08/2021 without properly evaluating the grounds of bail and without looking to the various important and significant judgments/rulings of the Hon'ble Supreme Court as well as this Court. It is submitted that the Hon'ble Supreme Court and this Court in catena of judgments have granted bail to the accused keeping in view the length of incarceration and also on the grounds that the appeal is not likely to be heard soon, but, this aspect of the matter has not been considered by the learned Tribunal while passing the order impugned dated 09.03.2022. It is also urged that otherwise also 5 WP(C) No. 900/2022 CM(2712/2022) as per the Jammu and Kashmir Jail Manual a person is entitled to remission immediately after completion of period of 14 years of imprisonment. Since the petitioner has already suffered incarceration for more than 16 years, he under law is entitled to remission.

6. Objections have been filed contending therein that petitioner was handed over to the Superintendent of Police, District Jail Udhampur on 23.07.2007 and is presently in the Central Jail, Purnia, Bihar since 05.11.217. He had approached the army authorities for premature release from jail in accordance with the Section 433A of Cr.PC and as per Jail report, convict has completed more than seventeen years which is above the mandatory period of 14 years of imprisonment under Section 433A of Cr.PC, 1973. It is also contended in the objections that the Jail authorities H I G H release on the basis of his good have recommended his premature OF JAMMU & C OCommand conduct, however, Northern U R T did not recommend premature KASHMIR AND release of petitioner since he has committed a heinous crime as he is LADAKH involved in a grave and heinous offence of murder of one of his senior colleague, as such, does not deserves concession of bail. Learned counsel for the respondents further argued that mere incarceration of the petitioner/convict for more than 16 years is not a ground for suspension of sentences as the offences against him have been proved during trial.

7. We have heard learned counsel for the petitioner/convict and learned ASGI for respondents.

8. The Hon'ble Supreme Court of India recently in a case titled "Brijesh Kumar @ Ramu vs. The State of Uttar Pradesh" [Criminal Appeal No. 540/2022] while expressing concern over bail pleas being rejected on 6 WP(C) No. 900/2022 CM(2712/2022) the ground that appeals filed by convict itself should be heard observed as under:

"The bail application of the appellant was rejected by the order dated 12.12.2019 stating that the paper books should be prepared within two weeks and case be listed immediately thereafter for hearing. We are informed that thereafter three times appellant had moved the application for listing and it was listed on 25.10.2021 and was not taken up. Thus, orders which instead of examining bail merely rejected on the ground that the appeal itself should be heard appears to serve no purpose because of the large number of appeals pending in the Allahabad High Court. The approach to bail matters is causing a further strain on the Court. This is not the only case of this kind which we have seen. As on date the appellant has undergone more than 14 years of actual sentence and 16 years with remission while the appeal is pending for seven years. Even if the date of the order of the High Court is taken into account which is about a little more than two years ago, the appellant would have spent about 12 years in custody by then and if the appeal is pending, we see no reason why in this kind of a single incident case, bail should not be granted. We really cannot appreciate the approach of the High Court in rejecting the bail application with a simple sentence that the appeal should be heard while hearing of the H I G Hlooks almost impossibility. Insofar as appeal O F J isAconcerned, the aspect of remission M M U &we are informed that 16 years actual sentence and C20O years URT with remission is the period before which the caseKofAremission S H M I of R sentence A N D is taken up. In this behalf in some other proceedings, Ms. Aishwarya Bhati, learned ASG had assured that due to Lelection A D A process K H it was not possible to take up the revisiting of the policy but post election, the needful would be done. We expect the State to examine this issue more so in the context of policies as prevalent in other States and the huge backlog of the criminal cases in the State of Uttar Pradesh both at the trial and High Court stage as also the fact that the appeals are not taken up for hearing for years together. Thus if a practical approach is adopted by the State to see at least the remission is examined after 14 years of actual sentence, some of these appellants may be satisfied with that aspect itself instead of prosecuting the appeal. We have thus no hesitation in setting aside the impugned order and opining that this is an incorrect approach being adopted and we grant bail to the appellant on terms and conditions to the satisfaction of the trial Court. Insofar as the aspect of remission of sentence is concerned, the case of the appellant can be examined once the policy has been revisited and if the appellant falls within the policy. The appeal is allowed in the aforesaid terms. We require the order to be placed before Hon'ble the Chief Justice of the Allahabad High Court and also to be circulated to the Hon'ble Judges of the Allahabad High Court so that we can see some 7 WP(C) No. 900/2022 CM(2712/2022) change in the approach which, apart from providing succor to the people in long detention, would prevent unnecessary load coming on to this Court"

9. The Hon'ble Apex Court in case of Smt. Akhtari Bi v. State of Madhya Pardesh 2001 (4) SCC 355 has laid down that after conviction in the trial Court where the appeal filed by the convict cannot be disposed within 5 years, for no fault of the convicts, the convict may be released on bail on such conditions as may be deemed fit and proper by the Court.

10. Ratio of judgements (supra) makes the legal proposition manifestly clear that where the convicts have already suffered incarceration for a period more than 5 years and more particularly the fact that there is not much likelihood of the hearing of the appeal preferred by convict, in near future, it becomes appropriate to enlarge such convict on bail.

HIGH O F admittedly

11. Coming to the present case, J A M Mpetitioner/convict U & is in incarceration COURT K A SThe for the last more than 16 years. HM I R Forces Armed A N D Tribunal while rejecting the L A D proposed application for grant of bail has further A K H to hear the main appeal itself as the same is already mature for final hearing and the same can be taken up for hearing at an early date. It is a fact that the appeal of the petitioner is pending since 2009 and about 13 years have elapsed, but, till date the same has not been heard finally and there is not much likelihood of his appeal being heard at an earliest in future because of non-availability of permanent bench of the Tribunal and the delay in disposal of the appeal not attributable to the petitioner.

12. Having considered the circumstances and the arguments advanced by the learned counsel for the parties and in particularly the fact that petitioner/convict has been in custody for more than sixteen years and there is very little likelihood 8 WP(C) No. 900/2022 CM(2712/2022) of the appeal/petition being heard on an early date by the Armed Forces Tribunal, because of pendency of many appeals/petitions of earlier vintage, read with the fact respondents have also admitted by contending that as per Jail report, petitioner/convict has completed more than 17 years which is above the mandatory period of 14 years of imprisonment under Section 433A of the Criminal Procedure Code, 1973 and the Jail authorities have recommended his premature release on the basis of his good conduct read with judgment of Hon'ble Supreme Court in "Brijesh Kumar @ Ramu vs. The State of Uttar Pradesh"Criminal Appeal No. 540/2022, we are inclined to release the petitioner/convict on bail subject to furnishing of bail bond to the tune of Rs. 1,00,000/- with two sureties of the like amount, to the satisfaction of the Registrar, Armed Forces Tribunal Regional Bench Srinagar at Jammu and H ItoGthe personal bond of the like amount H satisfaction of Superintendent Jail OF JAMMU & concerned and on the following C OU terms andRconditions:-

T KASHMIR AND

(i) L Aon The petitioner/convict DA K Hreleased on bail shall attend the being Armed Forces Tribunal on each and every date of hearing and shall not leave the Country without the prior permission of the Armed Force Tribunal where the case is pending.

(ii) The petitioner/convict shall report his jurisdictional Police Station where the petitioner resides once in a month on last Saturday and the concerned SHO shall maintain the record of his presence and send report of the same to the Armed Force Tribunal till the disposal of the Appeal/petition.

9 WP(C) No. 900/2022

CM(2712/2022)

(iii) Petitioner/convict shall surrender his passport, if any, and in case he is not holder of the same, he shall swear individual affidavit before the concerned Armed Forces Tribunal.

(iv) The petitioner/convict shall not commit any other offence.

(v) In case of the petitioner-accused violating any of these conditions, the respondents will be free to apply for cancellation of the bail granted by this Court.

13. Accordingly, this petition is disposed of along with connected CM(s). Jammu (Wasim Sadiq Nargal) (Tashi Rabstan) 04.08.2022 Judge Judge (Madan-PS) HIGH Whether the order is speaking : Yes/No. O Fis reportable Whether the order J A M M :UYes/No. & COURT KASHMIR AND LA Pronounced today in terms of DRule A K138(4) H of the Jammu and Kashmir High Court Rules, 1999.

(Tashi Rabstan) Judge Jammu 04.08.2022 MADAN LAL VERMA 2022.08.05 01:12 I attest to the accuracy and integrity of this document

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