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Delhi High Court

Md.Asam Ansari vs Union Of India & Ors. on 29 April, 2016

Author: Pradeep Nandrajog

Bench: Pradeep Nandrajog, Mukta Gupta

$~11

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                        Date of Decision : April 29, 2016


+                                   W.P.(C) 7532/2010
       MD. AZAM ANSARI                                      ..... Petitioner
                    Represented by:            Mr.Sanjay Poddar, Sr.Adv.
                                               instructed by Ms.Saahila
                                               Lamba, Mohd. Mustafa, Advs.
                           versus

       UNION OF INDIA & ORS                              ..... Respondent
                     Represented by:           Mr.Bhagvan Swarup Shukla,
                                               CGSC for UOI.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

1. The petitioner seeks review of the order dated March 10, 2011 disposing of the writ petition.

2. Three grievances were raised in the writ petition and one of which was that the appeal before the Central Government under Section 161(2) of the Air Force Act, 1950 was pending and that pursuant to the findings returned by the District Court Martial as confirmed by the confirming authority, but with the period of sentence reduced, the petitioner was W.P.(C) 7532/2010 Page 1 of 6 incarcerated.

3. The effect was that qua the sentence part of the penalty imposed resulted in the petitioner undergoing the sentence, and if the appeal under Section 161(2) of the Air Force Act, 1950 was accepted the petitioner would have unnecessarily remained in jail.

4. On November 24, 2010, the Bench seized of the writ petition namely :

Gita Mittal, J. and J.R.Midha, J. suspended the sentence and admitted the petitioner to bail.

5. The writ petition was disposed of on March 10, 2011 by a Bench comprising : Pradeep Nandrajog, J. and Suresh Kait, J. Noting that the grievance of the petitioner relatable to prayer 'B' had been satisfied inasmuch as necessary record had been supplied to the petitioner to enable the petitioner to amend the statutory appeal filed before the Central Government, it was noted that as regards prayer 'A', vide order dated November 24, 2010 the sentence has been suspended and therefore as regards the said prayer the writ petition was infructuous. As regards prayer 'C' it was noted that even the same had become infructuous. Therefore, the writ petition was disposed of as having become infructuous.

6. The appeal filed by the petitioner against the sentence imposed resulted in the Central Government passing an order on September 01, 2011 upholding the conviction and the sentence, as reduced by the confirming authority in respect of the order passed by the District Court Martial.

7. Said appellate order passed by the Central Government has been challenged by the petitioner after the writ petition was disposed of before the Armed Forces Tribunal, and before the Tribunal an issue arose concerning the power under which the sentence imposed upon the petitioner was W.P.(C) 7532/2010 Page 2 of 6 suspended by this Court vide order dated November 24, 2010. The issue was whether the High Court granted the bail in deemed exercise of the power of the Central Government or not. The issue arose because if the Central Government had admitted the petitioner to bail the sentence would have continued to run. If the Armed Forces Tribunal admitted the petitioner to bail the sentence would have remained suspended and the petitioner would have to undergo the remaining sentence for the unexpired period thereof.

8. Learned counsel for the petitioner states that different consequences flow and therefore in exercise of which power this Court granted bail, by suspending the sentence, assumes importance. If suspended by the Central Government the period of the sentence continues to run resulting in the petitioner virtually serving the sentence. If suspended by the Armed Forces Tribunal the period has to be excluded and remaining sentence has to be undergone.

9. Learned counsel for the petitioner submits that had it been a case where the petition had been filed before the Armed Forces Tribunal and the Tribunal had not exercised the power to suspend the sentence and admit the petitioner to bail and this Court admitted the petitioner to bail, the logical corollary would be it being held that this Court determined that there was a lack of exercise of jurisdiction vested in the Armed Forces Tribunal and therefore the order passed by this Court would be relatable to the power of the Armed Forces Tribunal. But, at the stage when the writ petition was filed and the sentence was suspended by this Court no proceedings were pending before the Armed Forces Tribunal and the petitioner's statutory appeal was pending before the Central Government with a prayer to admit W.P.(C) 7532/2010 Page 3 of 6 the petitioner to bail and the Central Government was delaying the matter. Therefore, it would be a case where this Court found injury occasioned due to non-exercise of power by the Central Government and thus the order granting bail and suspending the sentence would relate to as if it was passed by the Central Government.

10. Notwithstanding there being prima-facie merit of a good substance in the submissions advanced by learned counsel for the petitioner, we are handicapped to grant any relief. The reason is that the Bench which granted the bail after suspending the sentence was re-visited by the petitioner when he filed R.P.No.194/2016 and withdrew the same before the Bench concerned as recorded in the order dated April 22, 2016.

11. Since the Bench presided over by one of us; namely : Pradeep Nandrajog, J. was not the Bench which has admitted the petitioner to bail and had not passed the order dated November 24, 2010, this Bench cannot fathom into the mind of the Court concerned. The second problem would be the order passed by the Supreme Court in Crl.M.P. No.3364/2016 in Criminal Appeal D.No. 6200/2016. The same was disposed of by the Supreme Court on February 24, 2016. The Supreme Court has noted as under:

"It is also evident that the appellant has undergone a major portion of the sentence if not whole of the sentence awarded to him. In the circumstances, we deem it just and proper to suspend the remainder of the sentence awarded to the appellant pending final disposal of the appeal by the Tribunal. We however request the Tribunal to make an endeavour to expedite the disposal of the appeal. We make it clear that we have not expressed any opinion on the question whether the entire period of sentence awarded to the appellant can be treated as already undergone by him as pointed out before us by W.P.(C) 7532/2010 Page 4 of 6 Mr.R.Balasubramania, learned counsel for the respondent. That issue is left open to be examined at the appropriate stage."

12. The review petition which seeks a review of the order dated March 10, 2011 is actually seeking a clarification of the order dated November 24, 2010 passed by Gita Mittal, J. and J.R.Midha, J. Labelled as a review petition, but actually seeking the same very clarification which is prayed for herein, R.P.No.194/2016 was filed by the petitioner which was placed before the said Bench, but regretfully withdrawn.

13. Therefore it is our compulsion to dismiss the review petition simply observing that it is not uncommon for judicial authorities to encounter situations where orders passed by co-ordinate or superior Courts come up for interpretation. It becomes the duty of the fora concerned to look at the legal provision; to look at the situation of the case when the order was passed and therefrom infer the source of power in exercise of which the writ Court had granted a relief. We leave the question open for decision before the Armed Forces Tribunal because the Supreme Court has so ordered, and would certainly expect that the decision taken by the Tribunal would be with reference to the well-recognized principles of law and the contentions advanced by the petitioner, which we have succinctly noted hereinabove, shall be noted and dealt with thereafter.

14. The review petition is dismissed.

15. Dasti under signatures of the Court Master today itself.

For the reasons stated delay in filing R.P. 210/2016 is dismissed.

(PRADEEP NANDRAJOG) JUDGE (MUKTA GUPTA) JUDGE APRIL 29, 2016 'ga' W.P.(C) 7532/2010 Page 6 of 6