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N.K. Kolekar Dhanagi Hindu Vs. Uoi and Others - Court Judgment

LegalCrystal Citation
CourtArmed forces Tribunal AFT Principal Bench New Delhi
Decided On
Case NumberOA. No. 149 of 2014 with MA. No. 167 of 2014
Judge
AppellantN.K. Kolekar Dhanagi Hindu
RespondentUoi and Others
Excerpt:
.....prosecutrix, a girl aged about five years, to sexual assault with his hand as well as tongue. 4. learned counsel for the petitioner has contended that none of the accusations was made out in view of the following facts: (i) delay of four days in reporting the matter to the concerned authority; (ii) inherent lack of jurisdiction of gcm to try the offence under pocso; (iii) non subjection of victim to medical examination; and (iv) denial of opportunity to produce material witnesses in defence, including the father of the victim. 5. making reference to the decision of the supreme court in bhagwan rama shinde gosai and others vs. state of gujarat air 1999 sc 1859, learned counsel for the applicant has further urged that the suspension of sentence of a limited duration has to be considered.....
Judgment:

1. Heard on MA No.167/2014, which is an application u/s 15 (6)(e) of Armed Forces Tribunal Act, 2007 for suspension of sentence and grant of bail.

2. This OA has been preferred against the order dated 30.10.2013 passed by the GCM whereby the applicant was convicted u/s 10 of the Protection of Children from Sexual Offences Act (for short POCSO), 2012 read with Section 69 of Army Act, 1950 (on two counts) and sentenced to undergo RI for seven years. However, the confirming authority has reduced the period of custodial sentence to five years.

3. Allegations as found proved against the applicant, in short, are that, he had subjected the prosecutrix, a girl aged about five years, to sexual assault with his hand as well as tongue.

4. Learned counsel for the petitioner has contended that none of the accusations was made out in view of the following facts:

(i) Delay of four days in reporting the matter to the concerned authority;

(ii) Inherent lack of jurisdiction of GCM to try the offence under POCSO;

(iii) Non subjection of victim to medical examination; and

(iv) Denial of opportunity to produce material witnesses in defence, including the father of the victim.

5. Making reference to the decision of the Supreme Court in Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat AIR 1999 SC 1859, learned counsel for the applicant has further urged that the suspension of sentence of a limited duration has to be considered liberally.

6. While opposing the prayer, the learned counsel for the respondents has submitted that all the objections raised by the applicant were elaborately dealt with by the Court Martial before the commencement of the trial as well as during the course thereof. According to him, he is going to file two sets of GCM proceedings within a week and thus in a position to advance arguments on any convenient date thereafter.

7. Since the OA can be decided on merits within a reasonable period of time, the decision in Bhagwan Ramas case is of no avail to the applicant. Besides this, there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. Factors worth consideration broadly may be classified as under “

(a) The nature of accusation made against the accused.

(b) The manner in which the crime is alleged to have been committed.

(c) Gravity of offence.

(d) Desirability of releasing the accused on bail after he has been convicted for committing serious offence.

For this, reference may be made to the guidelines laid down by the Supreme Court in State of Haryana v. Hasmat AIR 2004 SC 393 while dealing with corresponding provision (Section 389) of the Code of Criminal Procedure.

8. Taking into consideration the nature of allegations found established and other facts and circumstances of the case, we are of the opinion that it is not a fit case for suspension of sentence. The MA is accordingly dismissed. However, in view of the fact that the applicant is in custody since 20.03.2013, it is further directed that the OA shall be heard on a priority basis.

9. As prayed by the learned counsel for parties, let the matter be listed for final hearing on 24.04.2014.


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