Rajasthan High Court quashed the dismissal order of BSF Jawan

The Hon'ble Rajasthan High Court, Jaipur has quashed and set aside the dismissal order of Head Constable (BSF) Mahendra Singh who was dismissed from service by Summary Security Force Court (SSFC) held by the Commandant of the Battalion.

                                        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                                                            BENCH AT JAIPUR

                                                    S.B. Civil Writs No. 4897/2007

Mahendra Singh S/o Girdhari Singh Sekhawat age 40 yrs Permanent resident of Village - Goverdhanpura, Via_Palsana Distt Sikar, Rajasthan.
                                                                                                                                                                                                                                                                             ----Petitioner
                                             Versus


1. Union Of India, Through Secretary, Ministry of home Affairs, Govt of India New Delhi.

2. Director General Border Security Force, 10 CGO Complex, Lodhi Road, New Delhi.

3. Commandant RPS Mallik 57 BN, BSF, Patiram P.O -Atari, Distt- Dakshin Dinajpur, West Bengal.

4. Head Constable Shivpal Singh, G Company, No.57 BN, BSF, Patiram P.O-Atari, Distt- Dakshin Dinajpur, West  Bengal

5. W/M Surender Singhe (98577003) presently posted at No.57 BN, BSF, Patiram P.O-Atari, Distt- Dakshin Dinajpur, West Bangal and permanent resident of Village Beniad, PO-Kasari, Dstt- Nagaur-Rajasthan.                                                                                             

                                                                                                                                       ----Respondents

Advocates For Petitioner       :  Mr.R.P.Singh, Sr.Advocate, Mr.Om Prakash Sheoran, Advocate
Advocates For Respondents   :  Mr.B.S.Chhaba, Assistant  Solicitor General with Mr.Mukesh Dudi, Advocate 

                                         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                                                Judgment

REPORTABLE

Date of Judgment      :      6th August, 2018.

1. The instant writ petition has been filed by the petitioner challenging the order dated 20.08.2006 dismissing him from service, passed by the Commandant, 57 Battalion, BSF, Patiram, West Bengal and further order dated 18.04.2007 passed by the DIG/Chief Law Officer (D&L), BSF, New Delhi rejecting the appeal of the petitioner filed against the dismissal order.

2. The brief facts of the case are that the petitioner was initially enrolled as Constable in the Border Security Force (in short 'the BSF') on 01.04.1988 and was posted in 57 Battalion, BSF at Patiram, West Bengal on the post of Head Constable in the year 2006.

3. The petitioner has pleaded in his petition that after sanction of his leave by the competent authority on 19.06.2006, he left the premises of BSF at 1700 Hrs. for his onward journey to his home town. The petitioner was about to board a civil bus at the local bus stop, located outside the gate of BSF in civil area, one Commandant R.P.S.Mallik directed one of his subordinate officer and other BSF personnel to bring back BSF personnel (the petitioner) inside the service/campus area of 57 Battalion, BSF and effected the search of the petitioner without any authority. It is alleged that the officials of the respondents falsely implicated the petitioner by showing recovery of money Rs.61,600/- which the petitioner was carrying with him as part of his salary and allowances which he earned while on duty along with other deposits made by fellow members for handing over to their families in Rajasthan as he was proceeding on 60 days annual leave to his home State - Rajasthan.

4. The petitioner has pleaded that during his search, his Commandant R.P.S.Mallik was present and after effecting the alleged search and seizure, the respondents exerted undue pressure on the petitioner and a confessional statement was obtained from him in the presence and under the direction of his Unit Commandant, R.P.S.Mallik. The leave of the petitioner was cancelled and he was placed under suspension on the same day vide order dated 19.06.2006.

5. The petitioner has alleged in the petition that the respondent No.3- Commandant then ordered the enquiry under the Border Security Force Act, 1968 (in short 'the BSF Act') known as Record of Evidence (in short "ROE') vide order dated 20.06.2006. The proceedings were initiated against the petitioner for the alleged recovery. The petitioner explained and provided the details of source of amount recovered from him. The respondents after completion of formalities in arbitrary manner without affording any opportunity to the petitioner to produce defence evidence, prepared the chargesheet dated 30.06.2006 under Section 46 of the BSF Act for committing a civil offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short 'the Act of 1988'). The respondents further ordered that the petitioner was to be tried by the Summary Security Force Court (in short 'the SSFC'). The charge levelled against the petitioner in the chargesheet dated 30.06.2006 reads as under:-

"APPENDIX VI CHARGE SHEET The accused No.88165685 Head Constable Mahender Singh Shekhawat of 57 Bn BSF is charged with BSF ACT COMMITTING A CIVIL OFFENCE, THAT IS TO SAY SEC 46 CRIMINAL MISCONDUCT FOR HAVING BEEN AS PUBLIC SERVANT IN POSSESSION OF PECUNIARY RESOURCES, DISPROPORTIONATE TO HIS KNOWN SOURCE OF INCOME FOR WHICH HE CANNOT SATISFACTORILY ACCOUNT FOR, AN OFFENCE SPECIFIED IN SECTION 13(1) (e) OF THE PREVENTION OF CORRUPTION ACT (4 of 28) [CW-4897/2007] 1988, PUNISHABLE UNDER SECTION 13(2) OF THE SAID ACT in that he at Bn HQ 57 Bn BSF Patiram on 19/06/2006 at about 1745 hrs was found in possession of Rs.61,600/- (Rupees sixty one thousand six hundred) only when checked,an amount disproportionate to his known source of income, which he could not satisfactorily account for.


                                                                                                          SD/- 30.06.2006
     Place : Patiram                                                                                 (R P S MALIK)
                                                                                                          COMMANDANT
     Dated: the __ June 2006.                                                                 57 BN BSF

                             "To be tried by Summary Security Force Court"

                                                                                                           SD/- 5.7.2006

                                                                                                            (D V SARASWAT)

                                                                                                           DY. INSPECTOR GENERAL

                                                                                                           SHQ BSF MALDA"

6. The petitioner has pleaded in his petition that he was communicated vide letter dated 14.07.2006 with regard to holding of SSFC and reply was sought from him by 16.07.2006 i.e. within two days. The petitioner after receipt of letter dated 14.07.2006 sought all the documents pertaining to the alleged offence and also supplied the list of defence witnesses and enclosed the copies of receipts showing the source of money which he wished to produce in his defence.

7. The petitioner had requested for appointment of one Shri S.S.Gill as Defence Nominee to represent him before the SSFC and vide letter dated 19.08.2006 the request of the petitioner was turned down by the respondents and another name was sought by 1200 Hrs. on the same day itself and the petitioner had no choice except to appoint one Shri Anil Choudhary as 'the friend of the accused'.

8. The petitioner has pleaded that in pursuance of the SSFC trial order dated 05.07.2006, the trial commenced on 20.08.2006 and concluded without affording any opportunity to supply the relevant documents pertaining to the convening, composition of SSFC, copy of chargesheet, procedure of trial at the SSFC or the list of prosecution/defence witnesses, etc. to the delinquent employee (petitioner), the respondents proceeded in an illegal manner.

9. The petitioner has pleaded that he was forced to plead guilty against his will under the false pretext of favouring him that if the petitioner will plead guilty, the Commandant would acquit him and the time of SSFC would be saved. The petitioner has pleaded that the respondents threatened the petitioner to plead guilty and thereafter the proceedings of SSFC were declared "closed" within few hours of commencement of trial and the order "to be dismissed from service" was passed on the same day i.e. on 20.08.2006, however, the said information was withheld from the petitioner and he was escorted to the nearest Railway Station and was forced to return back to his home town with assurance that the result of SSFC will be sent to his home town.

10. The petitioner requested to supply him the copy of the SSFC proceedings and finally the respondents sent the copy of order of dismissal and feeling aggrieved against the same, the petitioner submitted a statutory appeal under Section 117 of the BSF Act read with Rule 167(2) of the BSF Rules, 1969 but the respondents, without affording any opportunity of personal hearing, rejected the appeal of the petitioner vide order dated 18.04.2007.

11. The petitioner feeling aggrieved against the dismissal from service vide order dated 20.08.2006 and rejection of his appeal vide order dated 18.04.2007, has approached this court assailing these orders.

12. After the notices of the petition came to be served, the respondents have filed reply to the petition and have denied the averments made therein.

13. The respondents have pleaded in the reply that while the petitioner was posted at 57 Battalion, BSF, Patiram after his transfer from 192 Battalion, BSF, Jaisalmer, officers were receiving reports regarding connivance of some troops with smugglers for providing safe passage to them, so a close watch was kept on the activities of troops. It has been pleaded that orders were passed that no person will keep more than Rs.500/- with him while at BOP (Border Out Post) or Rs.50/- while on duty and excess amount will be deposited through Company Commander in Company.

14. It has been alleged that on 19.06.2006, the petitioner was found in unauthorized possession of Rs.61,600/- when checked at 57 Battalion, BSF Campus Gate while proceeding on leave, and said amount was disproportionate to his known source of income, which the petitioner could not satisfactorily account for. It has been alleged that as per the confessional statement made by the petitioner, he earned Rs.35,000/- which were hidden by him in a Transistor from trans-border crime i.e. smuggling and remaining Rs.26,600/- was from his pay and allowances which he received from the month of January, 2006 to May, 2006.

15. It has been asserted by the respondents that after the petitioner was placed under suspension, ROE was ordered against him and on completion of ROE, the petitioner was tried by the SSFC on 20.08.2006, as a prima facie case was made out against him. It has been asserted that during trial, he pleaded 'guilty' to the charge and the SSFC, upon finding him 'guilty', awarded sentence 'to be dismissed from service'.

16. The respondents have placed on record the confessional statement of the petitioner dated 19.06.2006 as Annexure R/1, addressed to the Commandant, 57 Battalion, BSF, Patiram, where the petitioner is said to have admitted that Rs.35,000/- which was hidden by him in a Transistor, were from trans-border crime i.e. smuggling and remaining amount of Rs.26,600/- was from his pay and allowances which he received. The respondents have submitted that written confessional statement was given by the petitioner on his own, without any direction, pressure, inducement or threat. The respondents have pleaded that all the proceedings have been conducted as per the requirement of law i.e. the BSF Act and Rules framed thereunder and proceedings of SSFC are legally sustainable.

17.   Learned   Senior     Counsel   appearing   for   the   petitioner Mr.R.P.Singh has made following submissions to support the case of the petitioner:-

(i) The very order of constituting the SSFC for the alleged incident of 19th June, 2006 is in violation of Section 74(2) of the BSF Act.

(ii) In absence of grave reasons for immediate action in respect of the alleged incident said to have been committed by the petitioner and such act not detriment to discipline of force, the SSFC could not have tried the petitioner for the offence punishable under Section 46 - Civil Offences, under the BSF Act.

(iii) The respondents while choosing the procedure of the SSFC have not considered the availability of other Security Force Courts provided under Section 64 of the BSF Act to look into the alleged incident enabling the petitioner to defend him in proper manner.

(iv) The very allegation against the petitioner of the alleged misconduct is under Section 46 of the BSF Act i.e. civil offence and the allegation against the petitioner is not in respect of any smuggling activity being allowed by the petitioner and the alleged misconduct was only for possessing pecuniary resources, disproportionate to the known source of income of the petitioner and such order of dismissal from service was not warranted.

(v) The plea of 'guilty' has wrongly been recorded by the respondents and the same is in gross violation of Rules 142, 143(4)(a) and 151 of the BSF Rules, 1969.

(vi) The petitioner has throughout defended his action of possessing the alleged amount and he had always disputed the allegation and there was proper explanation of money being possessed by him, the respondents could not have forced the petitioner to plead guilty and all the circumstances revealed that the petitioner was forced to plead guilty and as such entire proceedings adopted, by the SSFC is vitiated.

(vii) The petitioner has been put to prejudice due to presence of the Commandant at the time of the alleged incident, the same Commandant being witness of the entire incident, should not have conducted the SSFC against the petitioner. Rule 46 of the BSF Rules, 1969 provides for delinquent/petitioner to be attached to another Unit, where the accused is charged with respect to the offence which is against the Commandant himself or where the Commandant is otherwise personally interested in the case.

(viii) The respondents have violated the Rule 63(6) of the BSF Rules, 1969 as the time frame for completing the Summary Court procedure is reduced to 24 hours in respect of the SSFC and while dealing with the career of the delinquent, such shortcut procedure is not an appropriate exercise of powers in the case where allegation is levelled against the petitioner.

18. Counsel for the respondents, on the other hand, has submitted that there is admission on the part of the petitioner as on 19.06.2006 itself i.e. at the time of the incident, in the form of "confessional statement" given by the petitioner. The petitioner has further pleaded guilty before the SSFC and he never raised grievance of such procedure being followed in illegal manner till the impugned order was passed. The petitioner cannot be permitted to raise violation of various provisions of the Act and Rules at the time of appellate stage or before this court. The learned counsel for the respondents support the impugned orders.

19. I have heard learned counsel for the parties and with their assistance perused the material on record.

20. Before proceeding further in the matter, it would be significant to take note of the relevant provisions of the BSF Act & Rules framed thereunder, which read as follows:-

    "BORDER SECURITY FORCE ACT, 1968 Chapter-III (OFFENCES)

46. Civil Offences. -Subject to the provisions of section 47, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be tried by a Security Force Court and, on conviction, be punishable as follows, that is to say,-

(a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

Chapter-IV (PUNISHMENTS)

48. Punishments awardable by Security Force Courts.-

(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say,

(a) death;

(b) Imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody;

(c) dismissal from the service;

(d) imprisonment for a term not exceeding three months in Force custody;

(e) reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under- officer;

(f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;

(g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;

(h) fine, in respect of civil offences;

(i) severe reprimand or reprimand except in the case of persons below the rank of an under -officer;

(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty;

(k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal;

(l) stop page of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good.

(2) Each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.

CHAPTER-VI SECURITY FORCE COURTS

64. Kinds of Security Force Courts.- For the purposes of this Act there shall be three kinds of Security Force Courts, that is to say:-

(a) General Security Force Courts;

(b) Petty Security Force Courts; and

(c) Summary Security Force Courts.

65. Power to convene a General Security Force Court.- A General Security Force Court may be convened by the Central Government or the Director-General or by any officer empowered in this behalf by warrant of the Director-General.

66. Power to convene a Petty Security Force Court.- A Petty Security Force Court may be convened by an officer having power to convene a General Security Force Court or by an officer empowered in this behalf by warrant of any such officer.

67. Contents of warrants issued under sections 65 and

66.-A warrant, issued under section 65 or section 66 may contain such restrictions, reservations or conditions as the officer issuing it may think fit.

68. Composition of General Security Force Court.- A General Security Force Court shall consist of not less than five officers, each of whom has held the post of Deputy Superintendent of Police for not less than three whole years and of whom not less than four are of a rank not below that of a confirmed Deputy Superintendent of Police. Explanation:- For the purposes of this section and section 69 "Deputy Superintendent of Police" includes any post of a higher rank and any post declared by Central Government by notification to be an equivalent post as also any post higher in rank than the post so declared.

69. Composition of a Petty Security Force Court.-A Petty Security Force Court shall consist of not less than three officers each of whom has held the post of Deputy Superintendent of Police for not less than two whole years.

70.Summary Security Force Court.- (1) A Summary Security Force Court may be held by the Commandant of any unit of the Force and he alone shall constitute the Court. (2) The proceedings shall be attended throughout by two other persons who shall be officers or subordinate officers or one of either, and who shall not as such, be sworn or affirmed.

71.Dissolution of a Security Force Court.- (1) If a Security Force Court after the commencement of a trial is reduced below the minimum number of officers required by this Act, it shall be dissolved.

(2) If, on account of the illness of the Law Officer or of the accused before the finding, it is impossible to continue the trial, a Security Force Court shall be dissolved. (3) The officer who convened a Security Force Court may dissolve the same if it appears to him that the exigencies of the service or necessities of discipline render it impossible or inexpedient to continue the said Security Force Court. (4) Where a Security Force Court is dissolved under this section, the accused may be tried again.

72.Powers of a General Security Force Court.- A General Security Force Court shall have the power to try any person subject to this Act for any offence punishable thereunder and to pass any sentence authorised thereby.

73.Powers of a Petty Security Force Court.- A Petty Security Force Court shall have power to try any person subject to this Act other than an officer or a subordinate officer for any offence made punishable thereunder and to pass any sentence authorised by this Act other than a sentence of death, or imprisonment for a term exceeding two years.

74.Powers of a Summary Security Force Court.-(1) Subject to the provisions of sub-section (2), a Summary Security Force Court may try any offence punishable under this Act.

(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a Petty Security Force Court for the trial of the alleged offender, an officer holding a Summary Security Force Court shall not try without such reference any offence punishable under any of the sections 14, 17 and 46 of this Act, or any offence against the officer holding the court.

(3) A Summary Security Force Court may try any person subject to this Act and under the command of the officer holding the court, except an officer, or a subordinate officer. (4) A Summary Security Force Court may pass any sentence which may be passed under this Act, except the sentence of death or of imprisonment for a term exceeding the limit specified in sub-section (5).

(5) The limit referred to in sub-section (4) shall be,-

(a) one year, if the officer holding the Security Force Court has held either the post of Superintendent of Police or a post declared by the Central Government by notification to be equivalent thereto, for a period of not less than three years or holds a post of higher rank than either of the said posts; and

(b) three months, in any other case.

CHAPTER-VIII CONFIRMATION AND REVISION

114. Finding and sentence of a Summary Security Force Court.- (1) Save as otherwise provided in sub-section (2), the finding and sentence of a Summary Security Force Court shall not require to be confirmed, but may be carried out forthwith.

(2) If the officer holding the trial is of the rank of Superintendent of Police or of a rank declared under clause

(a) of sub-section (5) of section 74 as equivalent thereto or of a lower rank and has held such rank for less than five years, he shall not, except on active duty, carry into effect any sentence, until it has received the approval of an officer not below the rank of Deputy Inspector General.

115. Transmission of proceedings of Summary Security Force Courts.-The proceedings of every Summary Security Force Court shall, without delay, be forwarded to the officer not below the rank of Deputy Inspector-General within (14 of 28) [CW-4897/2007] whose command the trial was held, or to the prescribed officer, and such officer, or the Director General or any officer empowered by him in this behalf may, for reasons based on the merits of the case, but not on merely technical grounds, set aside the proceedings, or reduce the sentence to any other sentence which the court might have passed.

BORDER SECURITY FORCE RULES, 1969 Chapter-VIII (ON CHARGES AND MATTERS ANTECEDENT OF TRIAL)

63. Preparation of defence by the accused.- (1) An accused, who has been remanded for trial, shall be afforded proper opportunity for preparing his defence and shall be allowed proper communication with his defending officer or counsel and with his witnesses.

(2) A defending officer shall be appointed to defend an accused who has been remanded for trial unless the accused states in writing that he does not wish such an appointment to be made.

(3) if the prosecution is to be undertaken by a legally qualified officer or by a counsel the accused shall be notified of this fact in sufficient time to enable him, if he so desires to make arrangement for a legally qualified officer or counsel to defend him.

(4) As soon as practicable after a decision has been taken to place the accused on trial and in any case not less than four days before his trial he shall be given:

(a) a copy of the charge-sheet;

(b) an unexpurgated copy of the record or abstract of evidence showing the passages (if any), which have been expurgated in the copy sent to the senior member;

(c) notice of any additional evidence which the prosecution intends to adduce; and

(d) if the accused so requires, a list of the ranks names and units of the members who are to form the Court and of any waiting members.

(5) when an accused is given a copy of the charge-sheet and of the record or abstract of evidence in accordance with this rule, he shall:

(a) have the charge explained to him; and

(b) be informed that, upon his making a written request to his Commandant not less than twenty four hours before his trial requiring the attendance at his trial of a witness (other than a witness for the prosecution) whom he desires to call in his defence (such witness to be named by him), reasonable steps will be taken in accordance with these rules to procure the attendance of any such witness at his trial.

(6) The provisions of sub-rules (2) and (3) shall not apply in relation to a trial before a Summary Security Force Court and in relation to such a trial the period of four days referred to in sub-rule (4) shall be construed as twenty four hours.

CHAPTER-XI (SUMMARY SECURITY FORCE COURTS)

133. Proceedings.- The officer holding the trial, here-in- after in this Chapter called the Court shall record, or cause to be recorded the transactions of every Summary Security Force Court.

134. Evidence when to be translated.- (1) When any evidence is given in a language which the Court or the accused does not understand, that evidence shall be translated to the Court or accused as the case may be in a language which it or he does understand.

(2) The Court shall for this purpose either appoint an interpreter, or shall itself take the oath or affirmation prescribed for the interpreter at a Summary Security Force Court.

(3) When documents are produced for the purpose of formal proof, it shall be in the discretion of the Court to cause as much to be interpreted as appears necessary.

135. Assembly.- When the Court, the interpreter (if any) and the officers and subordinate officers attending the trial are assembled, the accused shall be brought before the Court and the oath or affirmation prescribed in rule 136 shall be taken by the persons therein mentioned.

136. Swearing or affirming of court and interpreter.- The Court shall take oath or affirmation in any one of the following forms or in such other form to the same purport which would, according to the religion or otherwise be binding on the conscience of the officer constituting the Court.

FORM OF OATH "I, . . . . . . . . . . . . . . . . .. . . . . . swear by Almighty God that I will duly administer justice, according to the Border Security Force Act, 1968 without partiality, favour or affection".

FORM OF AFFIRMATION "I,. . . . . . . . . . . . . . . . . do solemnly, sincerely and truly declare and affirm that I will duly administer justice according to the Border Security Force Act, 1968 without partiality, favour or affection".

(2) The Court, or any other person empowered by it in this behalf shall administer to the interpreter (if any) an oath or affirmation in any of the following forms, or in such other forms to the same purport as the Court ascertains to be according to the religion or otherwise binding on the conscience of the person who is to act as interpreter.

FORM OF OATH "I, . . . . . . . . . . . . . . . . swear by Almighty God that I will faithfully interpret and translate as I shall be required to do touching the matter before this Court".

FORM OF AFFIRMATION "I, .. . . . . . . . . . . . . . . . do solemnly, sincerely and truly declare and affirm that I will faithfully interpret and translate, as I shall be required to do touching the matter before this Court".

(3) The witnesses shall, after the administration of the oath and the affirmation, withdraw from the Court.

137. Swearing of Court to try several accused persons.- (1) A Summary Security Force Court may be sworn or affirmed at the same time to try any number of accused persons then present before it whether those persons are to be tried collectively or separately. (2) In the case of several accused persons to be tried separately, the Court, when sworn or affirmed shall proceed with one case postponing the other cases and taking them afterwards in succession.

(3) Where several accused persons are tried separately upon charges arising out of the same transaction, the Court may, if it considers it to be desirable in the interests of justice, postpone consideration of any sentence to be awarded to any one or more such accused persons until the trials of all such accused persons have been completed.

138. Arraignment of accused.- (1) After the Court and interpreter (if any) are sworn or affirmed as above mentioned, the accused shall be arraigned on the charges against him.

(2) The Charges on which the accused is arraigned shall be read and if necessary, translated to him and explained and he shall be required to plead separately to each charge.

139. Objection by accused to charge.- The accused, when required to plead to any charge, may object to the charge on the ground that it does not disclose an offence under the Act, or is not in accordance with these rules.

CHAPTER-XI (SUMMARY SECURITY FORCE COURTS)

142. General plea of "Guilty" or "Not Guilty" .- (1) The accused person's plea of 'Guilty' or 'Not Guilty' or if he refuses to plead or does not plead intelligibly either one or the other, a plea of 'Not Guilty' shall be recorded on each charge.

(2) If an accused person pleads 'Guilty' that plea shall be recorded as the finding of the Court but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.

(3) Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plead thereto, and a record to that effect shall be made in the proceedings of the Court.

143. Procedure after plea of 'Guilty'.- (1) Upon the record of the plea of 'Guilty', if there are other charges in the same charge-sheet to which the plea is 'Not Guilty', the trial shall first proceed with respect to those other charges and after the finding on those charges, shall proceed with the charges on which a plea of 'Guilty' has been entered; but if there are alternative charges, the Court may either proceed with respect to all the charges as if the accused had not pleaded 'Guilty' to any charge or may, instead of trying him, record a finding of 'Guilty' upon any one of the alternative charges to which he had pleaded 'Guilty' and finding of 'Not Guilty' upon all the other alternative charges which precede such charge.

(2) (a) After the record of the plea of 'Guilty' on a charge (if trial does not proceed on any other charges) the Court shall read the record or abstract of evidence and annex it to the proceedings, or if there is no such record or abstract, shall take and record sufficient evidence to enable it to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence.

(b) The evidence shall be taken in like manner as is directed by these rules in the case of a plea of 'Not Guilty'.

(3) The accused may, after such evidence has been taken or as the case may be, the record or abstract of evidence has been read, address the Court with reference to the charge and in mitigation of punishment and may call witnesses as to his character.

(4) (a) If from the statement of the accused, or from the record of evidence, or otherwise, it appears to the Court that the accused did not understand the effect of his plea of 'Guilty', the Court shall alter the record and enter a plea of 'Not Guilty' and proceed with the trial accordingly.

(b) Any alternative charges withdrawn under sub- rule(1) shall be reinstated in the charge sheet and the trial shall take place as if they had never been withdrawn.

(5) If a plea of 'Guilty' is recorded on some charges and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub-rule (2) and (3) shall take place after the findings on the other charges in the same charge-sheet are recorded.

(6) When the accused states anything in mitigation of punishment which in the opinion of the Court requires to be proved, and would, if proved, affect the amount of punishment, the Court may permit the accused to call witness to prove the same.

144. Withdrawal of plea of 'Not Guilty'.- The accused may, if he thinks fit at any time during the trial, withdraw his plea of 'Not Guilty' and plead 'Guilty' and in such case the Court shall at once, subject to compliance with sub-rule (2) of rule 142 record a plea and finding of 'Guilty' and shall, so far as if necessary, proceed in manner directed by Rule 143.

151. Procedure on finding of 'Guilty'.- (1) Where the finding on any charge is 'Guilty' the Court may record of its own knowledge, or take evidence of any record, the general character, age, service, rank, and any recognised acts of gallantry, or distinguished conduct of the accused, and previous convictions of the accused either by a Security Force Court, or a Criminal Court, any previous punishment awarded to him by an officer exercising authority under section 53, the length of time he has been in arrest or in confinement of any previous sentence, and any decoration, or reward of which he may be in possession or to which he may be entitled.

(2) Where the Court does not record the matters mentioned in this rule of its own knowledge, evidence on these matters may be taken in the manner directed in rule 101 for similar evidence.

152. Sentence.- The Court shall award one sentence in respect of all the offences of which the accused is found guilty."

21. The first issue which this court is required to adjudicate is about the procedure being followed by the respondents by choosing the procedure as prescribed in Section 64(c) of the BSF Act, 1968. This court finds that there are three kinds of Security (19 of 28) Force Courts, as per Section 64 of the BSF Act, 1968 and these are as follows:-

    (a) General Security Force Courts;

    (b) Petty Security Force Courts; and

    (c) Summary Security Force Courts.

22. This court finds that as per Section 70 of the BSF Act, 1968, a Summary Security Force Court is required to be headed by the Commandant of the Unit of the Force and he alone shall constitute such Court.

23. This court finds that the procedure of Summary Security Force Court is as per Sections 114 and 115 of the BSF Act, 1968. This court finds that in the BSF Rules, 1969, Chapter-XI deals with the procedure prescribed for holding SSFC. A look at the Rule 63 of the BSF Rules, 1969 lays down the procedure of affording proper opportunity for preparing defence by the accused and sub- rule (6) of Rule 63 of the BSF Rules, 1969 provides that in relation to a trial before the SSFC, the period of filing reply and other requirements of nomination of defence representative is twenty- four hours.

24. This court further finds from the reading of Section 74 of the BSF Act, 1968 that SSFC may try any offence punishable under the BSF Act, 1968. There is a provision under Section 74(2) of the BSF Act, 1968 that if there is no grave reason for immediate action and reference can, without detriment to discipline, be made to the Officer empowered to convene a Petty Security Force Court for the trial of an alleged offencer, any Officer holding a Summary Security Force Court will not try without such reference any offence punishable under any of the Sections - 14, 17 and 46 of the BSF Act, 1968.

25. The rule making authority while providing a procedure under the Summary Security Force Court has given a safeguard that there has to be a grave reason for immediate action and the alleged offence (reference) should be detriment to the discipline of the force and in such eventuality, the recourse can be made to the Summary Security Force Court.

26. The rule making authority though has full discretion to choose any kind of Security Force Courts, as per Section 64 of the BSF Act, 1968, however, the said discretion is to be exercised and required to be guided by keeping in mind the immediate action and the effect of the alleged incident/offence/misconduct, in respect of the discipline of the Security Force.

27. This court finds that in the present case, the Deputy Inspector General, SHQ, BSF Malda by the endorsement dated 05.07.2006 has only mentioned "To be tried by Summary Security Force Court".

28. The submission of learned counsel for the petitioner that twin requirements of invoking the provisions of Section 74(2) of the BSF Act, 1968 have not been fulfilled by the respondents, this court finds that the specific plea raised by the petitioner in his petition and further during the course of arguments, the respondents in their reply to the grounds in para (C) have only made a mention that trial proceedings are not vitiated as there is an endorsement of the Deputy Inspector General, SHQ, BSF Malda on the chargesheet. It has been further averred by the respondents that as per the BSF Act, 1968, every Deputy Inspector General has been issued with such a warrant by the respective Inspector Generals to convene a Summary Security Force Court.

29. This court finds that competence of Deputy Inspector General is not being questioned by the petitioner but the grievance is with regard to invoking extra-ordinary procedure where the other rights which are available in different Security Force Courts, like General Security Force Courts and Petty Security Force Courts, are not made available to the delinquent.

30. This court finds that the offence which was alleged to have been committed by the petitioner was a Civil offence, as per own case of the respondents, as there was an alleged violation of Section 46 of the BSF Act, 1968. The respondents have mentioned in the chargesheet that the petitioner has committed a Civil offence - a criminal misconduct for having been as public servant in possession of pecuniary resources, disproportionate to his known source of income for which he could not satisfactorily account for and as such the same was an offence specified under Section 13(1)(c) of the Prevention of Corruption Act, 1988 and punishable under Section 13(2) of the Prevention of Corruption Act, 1988.

31. This court finds that once the respondents themselves have treated that the offence committed by the petitioner, was in the nature of Civil offence under Section 46 of the BSF Act, 1968, the recourse to SSFC does not seem to be justified in the facts of the present case. The discretion of the appropriate authority to choose a particular procedure for trying an offence would depend not only on the nature of offence committed but also on the gravity of the offence and further the urgency of the matter and its impact on the force.

32. Counsel for the respondents during the course of arguments has submitted that at the date of incident i.e. on 19.06.2006 when the petitioner was brought back in the BSF campus and search was conducted on the petitioner, Rs.61,600/- were recovered from him and the petitioner himself gave a statement that the said amount was received by him by illegal means i.e. through smuggling while deployed on border. The respondents have filed the said statement which was said to be given before the Commandant of 57 Battalion, BSF dated 19.06.2006 (Annex.R/1). This court finds that the chargesheet which was given to the petitioner is not in respect of his involvement in any smuggling activity or receiving unexplained amount of Rs.35,000/- from smugglers while he was deployed at BOP, Kumargram and Ghunsi from January, 2006 to April, 2006.

33. This court finds that the respondents themselves found the petitioner guilty of committing Civil offence under Section 46 of the BSF Act, 1968 and there is no iota of any evidence or material which was adduced against the petitioner even in the Record of Evidence (ROE) that the petitioner was in any manner working in illegal manner indulging himself in smuggling activities.

34. The contention of the learned counsel for the petitioner that there has been violation of Rule 142(2) of the BSF Rules, 1969 as the respondents have illegally recorded the plea of guilty against the petitioner in the SSFC proceedings, this court finds that the Commandant has recorded the plea of guilty in respect to a question put to the petitioner and he has recorded the plea of guilty in the following manner:-

    "ARRAIGNMENT Ques No.1:- How say you No.88165685 HC (Question to the accused) Mahender Singh Shekhawat are you guilty or not guilty of the charge?

      Ans No.1                     "GUILTY"
      (Ans by accused)


    The accused having pleaded "Guilty" to the charge, the Court explains to the accused the meaning of charge to which he had pleaded "Guilty" and ascertains that the accused understands the nature of the charge to which he has pleaded "Guilty". The Court also inform the accused the general effect of that plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge and the effect of the plea of "Guilty" accepts and records the same. The provisions of Rule 142(2) are complied with."

35. A close scrutiny of the provisions contained in Rule 142 reveals that accused person who pleads guilty, the court has to ascertain that the delinquent understands the nature of charge of which he pleads guilty, he is informed the effect of plea of guilty in particular of the meaning of charges to which he pleads guilty and the difference in procedure which is following without he takes plea of guilty. The said Rule further casts a duty to advise the delinquent to withdraw the plea of guilty if it appears from the record or abstract of evidence or otherwise that the delinquent-accused ought to plead not guilty. On the perusal of the notesheet with respect to the plea of guilty, this court finds that in a mechanical manner the plea of guilty has been recorded. The petitioner has throughout been explaining during the Record of Evidence (ROE) proceedings that money which was recovered from him was not only earned through his salary but the other persons as batchmates had handed over him the money to deliver the same to their respective families who were residing near the hometown of the petitioner in Rajasthan.

36. The petitioner who has always been disputing the charges leveled against him during the course of Record of Evidence (ROE), could not have been in fact forced to plead guilty in the circumstances which emerged from the case. Sub-rule (2) of Rule 142 of the BSF Rules, 1969 also takes into account the situation where all things are explained to the delinquent i.e. about the nature of charge, general effect of pleading guilty, difference in procedure when one pleads guilty, yet the authority concerned can advise the person to withdraw the plea of guilty, if it appears to them from the record or abstract of evidence or otherwise that the accused should not plead guilty.

37. This court finds that though in a stock-phrase manner the plea of guilty has been recorded, however, the petitioner has not been given chance or advise to withdraw the plea of guilty and further the authority who was responsible for undertaking the procedure, could have not permitted the plea of guilty, if there has been denial of charge throughout by the delinquent about receiving any money from any other source except earning from the salary or money being collected from other persons - batchmates.

38. This court finds that as per Rule 143(4)(a) of the BSF Rules, 1969 even if a person pleads guilty and such person does not understand the effect of guilty, the court can alter the record and enter a plea of "not guilty" and proceed with the trial accordingly.

39. The submission of the learned counsel for the petitioner that Commandant being a person interested ought not to have conducted SSFC against the petitioner, as per the requirement of Rule 46 of the BSF Rules, 1969, this court finds that the alleged incident of recovering money within the BSF campus had taken place in the presence of Mr.R.P.S.Malik, Commandant, 57 Battalion, BSF, Patiram (WB) and further he himself was conducting SSFC against the petitioner as Commandant of the Unit. Though Mr.Malik may not be a witness in the instant case against the petitioner, as per the requirement of Rule 46(ii) of the BSF Rules, 1969, however, under sub-rule (iii) of the Rule 46 of the BSF Rules, 1969, if the Commandant is otherwise personally interested in the case, the accused/delinquent is required to be attached to another Battalion or Unit for disposal of the case under the order of the Deputy Inspector General. The proviso to Rule 46 of the BSF Rules, 1969 further provides that if an offence is committed against the property of the Force Mess, band or institution of which the Commandant is a member or trustee or the offence is one of disobedience of such Commandant's orders, there is no need to attach the accused/delinquent to another Battalion in such eventuality.

40. In the instant case, the nature of offence leveled against the petitioner is not in respect of any of the situations which are covered by the proviso enabling the same Commandant to try the offence.

41. This court finds that if the initial search against the petitioner was conducted on the instructions and in the presence of Mr.R.P.S.Malik, Commandant, 57 Battalion, BSF, Patiram (WB), the requirement of Rule 46(iii) of the BSF Rules, 1969 necessitated transfer of the case to another Battalion or Unit.

42. The procedure adopted in holding SSFCs is a special procedure and in such procedure there should not only be fair trial and justice imparted to the delinquent but it should also reflect proper adjudication by independent mind without any element of apprehension or any biasness. This court cannot rule out that if the incident takes place in the presence of one Commandant and he becomes the Officer to try the offence as Commandant, fair justice may not be imparted to the delinquent/ accused. This court finds substance in the submission of the learned counsel for the petitioner that fair procedure and proprietary demanded that petitioner's case should have been tried by the Commandant of any other Unit of the Force.

43. This court finds no substance in the submission of the learned counsel for the respondents that the petitioner has not raised any grievance with respect of violation of the provisions of the Act and as such he is estopped to challenge the same either at the appellate stage or before this Court. This court finds that the petitioner has highlighted the manner in which the entire proceedings were completed in one day. The petitioner being one of the lowest persons in the rank of hierarchy of the force (Head Constable) could not have even raised his finger about the superiors in the rank of Commandant and Deputy Inspector General who decided to dismiss the petitioner from service by following extra-ordinary procedure of holding SSFC for a Civil offence.

44. This court further does not find substance in the submission of the learned counsel for the respondents that since there was a confessional statement given by the petitioner admitting his guilt to receive the disputed amount from smugglers, the petitioner himself pleaded guilty and as such he deserves punishment.

45. The safeguards which have been provided to a delinquent under the various provisions of the BSF Act, 1968 & Rules, 1969 framed thereunder, enumerate the situation where a person should get fair deal and proper right to defend himself even in the adverse situations. The respondents in a mechanical manner have issued the impugned orders and the same are not found to be sustainable in the eye of law.

46. Consequently, the present writ petition deserves to be allowed and is hereby allowed and the order dated 20.08.2006 dismissing the petitioner from service passed by the Commandant, 57 Battalion, BSF, Patiram (West Bengal) and order dated 18.04.2007 passed by the DIG/Chief Law Officer (D&L), BSF, New Delhi are hereby quashed and set aside.

47. The petitioner is entitled for reinstatement in service. The period from the date of dismissal till reinstatement will be counted for all the purposes like pension, etc. except the actual payment of salary and other allowances. The pay of the petitioner will be fixed notionally on his reinstatement by giving him the benefit of pay revision, etc. The petitioner shall not be entitled for any salary and monetary benefit from the date of dismissal from service till reinstatement. The consequential orders be passed in two months. No costs.
  

                                                                                       (ASHOK KUMAR GAUR),J