Navy Act; Ajay Kumar Singh Vs. The Flag Officer Commanding-In-Chief [Supreme Court of India, 13-07-2016]

Navy Act, 1957 – Section 77(2) –  Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 – Indian Penal Code, 1860 – Sections 342 and 392 – Robbery – Wrongful confinement of the bank manager and cashier – Possession of country made pistol and three rounds of ammunition whilst committing the offence – Accused had remained absent without leave – Court Martial – the tribunal has acquitted the appellant-DK Singh on the ground that the prosecution has not established the guilt of the accused beyond reasonable doubt – It is not as if, the appellant-DK Singh was honourably acquitted – Appellant–DK Singh who was only granted benefit of doubt cannot seek for reinstatement and the consequential benefits and his appeal is also liable to be dismissed.

AIR 2016 SC 3528 : (2016) 9 SCC 179 : 2016 (6) JT 487 : 2016 (6) Scale 785 : 2016 (3) Crimes 140 : 2016 (3) S.C.T. 794 : 2016 (2) SCCriR 889 : 2016 AIR (SCW) 3528 : 2016 (3) Crimes 212 : 2016 Cri. L.R. 816 : 2016 RajCriC 613 : 2016 (3) Law Herald (SC) 2453 : 2016 (3) AIR Bom.R (Cri) 210 : 2016 (3) JBCJ 463 : 2016 (96) ACrC 438 : 2016 All SCR (Crl.) 1309 : 2016 (165) AIC 90 : 2016 CriLJ 4174 : 2016 (3) SCC(Cri) 426 : 2016 (3) ALT (Crl.) 212 : 2016 (2) SCC (L&S) 547 : 2016 (4) ECrC 60 : 2016 (4) AIR Jhar R. 511 : 2016 (4) R.C.R.(Criminal) 114

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(T.S . THAKUR, CJI.) (R. BANUMATHI) JJ.

July 13, 2016

CRIMINAL APPEAL NO. 325 OF 2012

AJAY KUMAR SINGH …Appellant

Versus

THE FLAG OFFICER COMMANDING-IN-CHIEF & ORS. …Respondents

With

CRIMINAL APPEAL Nos………..… OF 2016

(Arising out of SLP (Crl.) Nos. 8037-8038 of 2012)

DHIRENDRA KUMAR SINGH …Appellant

Versus

THE CHIEF OF THE NAVAL STAFF, INDIAN NAVY & ORS. …Respondents

And

CRIMINAL APPEAL NOS. 471-472 OF 2013

UMESH KUMAR SINGH …Appellant

Versus

THE FLAG OFFICER COMMANDING-IN-CHIEF & ORS. …Respondents

J U D G M E N T

R. BANUMATHI, J.

Delay condoned and leave granted in SLP (Crl.) No.8037-8038 of 2012.

2. Appellant-Ajay Kumar Singh (AK Singh), Ex-Seaman, First Class (appellant in Criminal Appeal No.325 of 2012) and Umesh Kumar Singh (UK Singh), Ex-Radio Operator (Special), First Class (appellant in Criminal Appeals No.471-472 of 2013) have assailed the judgments of Armed Forces Tribunal, Chennai in T.A. No.139 of 2010 dated 11.11.2010 and T.A. No.11 of 2011 dated 05.01.2012 and order dated 17.02.2012 passed in Review Petition No.2 of 2012 in and by which the tribunal affirmed the conviction of the appellants under

Sections 342 and 392 IPC read with Section 77(2) of the Navy Act, 1957

and modified the sentence of imprisonment to that of the period already undergone by them. Appellant Dhirendra Kumar Singh (DK Singh), Ex-Leading Seaman, Physical Trainer, Second Class who was acquitted by the tribunal with pensionary benefits, has preferred separate appeals seeking direction for reinstatement and other monetary benefits. These criminal appeals though assail separate judgments of Armed Forces Tribunal, Chennai, as the appeals arise out of the same bank robbery incident, all the appeals were heard together and are disposed of by this common judgment.

3. Brief facts which led to filing of these appeals are as follows: Mr. N.K. Marwaha, Branch Manager of Andhra Bank, Extension Counter, situated at Utility Complex, INS Virbahu filed a complaint on 04.06.1998 at Malkapuram Police Station alleging that at about 7.20 p.m. while settling the accounts for the day along with Nallamuthu Dass, the cashier, noticed two persons entered the bank stating that they wanted to open a bank account and the third person entered after them. Of three persons, two were armed with two countrymade pistols, a khukri and an iron rod and they together threatened the manager and cashier to open iron safe. Manager-Marwaha and cashier opened the iron chest and the culprits removed Rs.2,54,376/- from the cash tray of the iron safe and kept the same in the blue colour rexin bag which they were carrying. They removed the money, the three persons locked the manager and the cashier inside the strong room of the bank before escaping in a metallic blue Bajaj Chetak scooter alongwith the blue colour cash bag. During the commission of the offence, the culprits were concealing their identity by wearing helmets with visors and masks. After forcing open strong room where they had been locked, the manager filed a complaint on 04.06.1998 before Malkapuram Police Station based on which first information report was registered in Crime No.34 of 1998 under Sections 392 and 342 IPC read with Section 25 (1-A) of the Arms Act. The Naval Police had taken over the investigation; but they were unable to make headway into identity of the accused persons despite recovery of the scooter and other articles on 23.07.1998. The investigation was then handed over to the civil police. After further investigation, civil police arrested appellants AK Singh and UK Singh on 30.07.1998. Appellant DK Singh was arrested at Howrah Railway Station on 24.07.1998 and thereafter brought to Visakhapatnam on 28.07.1998. On 30.07.1998 all three persons were remanded to custody in central jail, Visakhapatnam. Based on the statement of the accused persons, certain recoveries were made. On 17.08.1998, identification parade was conducted and PWs 14 and 18 identified the appellants.

4. The Commissioner of Police, Visakhapatnam vide letter dated 28.10.1998 advised the Flag Officer, Commanding-in-Chief, Eastern Naval Command, Visakhapatnam to try the accused persons by Court Martial. Therefore, the appellants were transferred to naval custody under the provisions of Section 475 Cr.P.C. read with

Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978

and the matter was investigated afresh by the Commanding Officer, INS Circars. After completion of investigation, chargesheet was filed against the appellants on 26.06.1999 under Sections 392 and 342 IPC read with Section 77 (2) of the Naval Act and Section 25(1-A) of the Arms Act read with Section 77(2) of the Navy Act:-(i) for committing a robbery of Rs.2,54,371/- at the Andhra Bank Extension Counter at INS Virbahu; (ii) for wrongful confinement of the bank manager and cashier; (iii) for possession of country made pistol and three rounds of ammunition whilst committing the offence; and (iv) that accused had remained absent without leave. The Court Martial was convened on 16.07.1999 and the appellants were tried before the Court Martial.

5. Before the Court Martial, twenty nine prosecution witnesses were examined. Upon consideration of evidence, the Court Martial found the appellants guilty of various charges and sentenced them to undergo various imprisonments. Additionally, all three appellants were imposed punishment of dismissal with disgrace and to suffer such other consequential penalties involved. The appellants preferred statutory appeals before the Chief of the Naval Staff in accordance with Section 162 of Navy Act 1957. The Chief of Naval Staff confirmed the conviction of the appellants and reduced the imprisonment and maintained dismissal of the appellants with disgrace from the naval service.

6. The details of charges framed against the appellants, findings of the court martial, punishment and findings of the appellate authority/Chief of the Naval Staff are as under:-