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IN THE HIGH COURT OF DELHI AT NEW DELHI
Talwant Singh, J.
Gavade Kisan Bapu - Appellant
Versus
Union Of India & Ors. - Respondents
Criminal Writ Petition No. 2995 of 2019, Criminal Miscellaneous Application No. 41209-41210 of 2019
Decided On : 04-04-2022
Suspension of Sentence - National Security Guard - National Security Guard act, 1986, Protection of Children from Sexual Offences act, 2012 - Section 45 of NSG act, 1986, Section 10 of POCSO act, 2012
Fact of the Case:
The petitioner, a member of the Indian army, was convicted under Section 45 of National Security Guard act, 1986, read with Section 10 of The Protection of Children from Sexual Offences act, 2012. He was sentenced to 5 years imprisonment and dismissal from service. He sought suspension of sentence as he had already served 4 years and 8 months, and his appeal was unlikely to be heard before the completion of his sentence in July 2022.
Finding of the Court:
The court considered the severity of the offense, the petitioner's conduct in jail, and the pending appeal. It noted similar cases where suspension of sentence was granted due to the time served and satisfactory conduct. The court found that the petitioner's circumstances warranted suspension of sentence, subject to conditions.
Issues: The main issue was whether the petitioner's sentence should be suspended considering the time served, the nature of the offense, and the pending appeal.
Ratio Decidendi: The court relied on previous judgments where suspension of sentence was granted based on the time served, conduct in jail, and the likelihood of the appeal not being heard before completion of the sentence.
Final Decision: The court allowed the suspension of the petitioner's sentence on the execution of a personal bond and surety, with conditions to attend court when listed, not contact or visit the victims, and not commit any other offense during the suspension period.
JUDGMENT
Talwant Singh, J. - Crl.M.a.41210/2022
1. The petitioner has moved this application for suspension of sentence, which was awarded to him vide order dated 08.08.2016 passed by Learned General Security Guard Court, upheld by order dated 19.10.2016 passed by the Director General, National Security Guard (NSG) and further upheld by order dated 14.12.2018 passed by The Secretary, Ministry of Home affairs, and to release him on bail.
1.1. It has been mentioned in the application that the petitioner had filed a criminal writ petition challenging the above detailed orders. He was convicted under Section 45 of National Security Guard act, 1986, read with Section 10 of The Protection of Children from Sexual Offences act, 2012 (hereinafter referred to 'POCSO act') and he was sentenced to undergo imprisonment for a term of 5 years and was also dismissal from service.
1.2. When this application was moved, it was stated the petitioner had undergone imprisonment for a period of 3 years and 6 months out of total punishment of 5 years, as he was in custody since 17.04.2016. The final disposal of the writ is likely to take some time, hence in the meantime, suspension of sentence was prayed for. Giving history of the matter, it has been submitted that the applicant had joined Indian army in 2002; he has good character and antecedents and there is no truth in the case made out against him; the petitioner is the sole bread earning member in his family; he has two minor children, who are completely dependent on the petitioner for their survival; and they are in a pitiful and very bad condition, as there is no one to take care of them. Hence, it is prayed that the sentence awarded to him may be suspended.
2. Notice was issued on this application. Reply was filed on behalf of the respondents. It has been mentioned that the petitioner was on deputation to NSG w.e.f. 07.01.2014. after the Court of Inquiry into the complaints against the petitioner, 05 charges for aggravated sexual assault on children at NSG Campus were framed and he was tried by General Security Guard Court (GSGC) under Section 45 of the NSG act, 1986 read with Section 10 of POCSO act, 2012. at the end of the trial, the petitioner was found guilty of three charges by GSGC and he was sentenced to 5 years imprisonment along with dismissal of service. as stated in the petition, the said sentence was upheld by authorities for Internal Security Division of MHa.
2.1. The petitioner was stated to be under trial person since 17.04.2016 to 25.10.2016. The period undergone after conviction by the petitioner was from 26.10.2016 to 21.03.2022. During this period, he had also availed parole for a total period of 1 year, 2 months and 15 days on various occasions. This period has been deducted from the sentence served. The under-trial custody period has also been duly adjusted and his probable date of release is in the month of July, 2022. On 03.02.2022, the actual sentence undergone by the petitioner, including custody as under-trial by the petitioner is 4 years, 7 months and 01 day, as per the letter of Superintendent of Prison, District Prison, Gurugram, Haryana, dated 07.02.2022.
2.2. It is also submitted by the respondents that the remission application, moved by the present petitioner, is pending consideration before Haryana Government, which is also opposed by the respondents. The offence committed by the petitioner is of grave nature and against multiple victims of minor age. The petitioner misused his position as an NSG official and has tainted the image of the prestigious security organization, i.e., NSG by committing aggravated sexual assault on 3 minor children; the faith of the common people in the army personnel would be adversely affected if the sentence of the petitioner is suspended. The petitioner was an adult male and victims of the petitioner were minor girls.
2.3. The respondents have relied upon judgment of the Madras High Court in Crl. M. P. 5099/2020 in Crl. a. No. 332/2020
The court may grant suspension of sentence based on the time served, conduct in jail, and the likelihood of the appeal not being heard before completion of the sentence.
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When a convict is serving a fixed-term sentence and their appeal is unlikely to be heard promptly, courts should liberally exercise discretion to suspend the sentence, particularly if the convict has....
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