Bombay High Court
Mr. Raghubir Singh S/O Niuaram ... vs The State Of Maharashtra And Other on 28 April, 2016
Bench: R.M. Borde
1 CRWP 1499 of 2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1499 OF 2015
Mr. Raghubir Singh S/o Niuaram Atariya
Age: 46 years, Occu.: Service (Washer
man, Border Security Force)
R/o & Occupation : No.920089637 CT/WM
STC BSF Chakur, Maharashtra
(22 years' service in Border Security Force)
Permanent Resident of, New Basti Kiri,
Old City, Dholpur, Dist. Dholpur,
Rajasthan - 328001
Now in Jail lodged at,
At Nashik Road, Nashik, Dist. Nashik,
Maharashtra.
...PETITIONER
(Original Accused)
VERSUS
1. The Union of India
Through the Secretary,
Ministry of Home Affairs,
Government of India
New Delhi - 110003.
2. The Director General,
Government of India
(Ministry of Home Affairs)
Directorate General Border Security Force,
B.S.F.(D&L) Branch, New Delhi,
2nd Floor, Block No.10, CGO
Complex, Lodhi Road,
New Delhi - 110003
3. The DIG & COMMANDANT
STC BSF Chakur, A/P.- Chakur,
District: Latur, Maharashtra
::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 00:09:59 :::
2 CRWP 1499 of 2015
4. The State of Maharashtra,
Through, the Secretary,
Ministry of Home Affairs,
Mantralaya, Mumbai -32
(Maharashtra) ...RESPONDENTS
...
Mr.Abhay Ostwal, Advocate h/f Mr.Kiran D.Jadhav,
Advocate for Petitioner;
Mr. Sanjeev B. Deshpande, ASG for Respondent Nos.
1 to 3;
Mr.S.Y. Mahajan, Public Prosecutor for Respondent
No.4 / State.
...
CORAM: R.M.BORDE & P.R.BORA, JJ.
DATE: April 28th, 2016
...
JUDGMENT: (Per P.R.Bora, J.)
1. Petitioner has filed the present petition seeking
quashment of order dated 26th October, 2015, passed by
the Director General, Border Security force, under Section
117 (2) of the Border Security Force Act whereby the
statutory petition filed by the petitioner against the order
passed by DIG and Commandant, STC BSF on 8th of June,
2015, has been rejected. Petitioner has also sought
quashment of the said order dated 8th of June, 2015.
The order dated 25th of May, 2015, passed by the
3 CRWP 1499 of 2015
Additional D.G. (West), BSF, Chandigarh, while disposing
of the Pre-confirmation petition is also sought to be
quashed.
2. The facts involved in the present petition, in
brief, are thus:
Petitioner was Constable / Washerman in STC BSF,
Chakur.
Petitioner was alleged to have committed
aggravated sexual assault punishable under Section 10 of
the Protection of Children from Sexual Offenses Act, 2012,
and he being a member of Armed Force, was tried by the
General Security Force Court for an offense under Section
46 of the B.S.F.Act, 1968. The charge against the
petitioner was that on 30th of June, 2014, at about 7.40
a.m., at Kendriya Vidyalaya, BSF, Chakur, petitioner
sexually assaulted the prosecutrix, aged about nine and
half years, a daughter of an Inspector of STC BSF, Chakur.
In the trial held against the petitioner, he was found guilty
of the charge levelled against him and has been, therefore,
convicted and sentenced to suffer imprisonment for five
years and has also been dismissed from the services w.e.f.
29.12.2014. The finding recorded and the sentence
4 CRWP 1499 of 2015
imposed by the General Security Force Court (for short,
'GSFC') has been confirmed by A.D.G. (WC BSF),
Chandigarh, on 25th/26th of May, 2015. The statutory
petition preferred by the petitioner, challenging the order
passed by the GSFC and confirmed by ADG has also been
dismissed by the Director General, BSF. The petitioner
has, therefore, invoked the writ jurisdiction of this Court
seeking quashment of the aforesaid orders passed against
him and has consequently, sought his acquittal from the
criminal prosecution conducted against him.
3. The petitioner has assailed the impugned orders
on various grounds. Shri Abhay Ostwal, learned Counsel
appearing for the petitioner, submitted that the order
dated 26th October, 2015, passed by the Director General,
BSF (respondent no.2) is a non reasoned and cryptic
order. Learned Counsel further submitted that respondent
no.2 has not recorded any finding or reasoning on the
grounds of appeal raised by the petitioner. According to
the learned Counsel, since respondent no.2 has passed the
impugned order without application of mind, the same
deserves to be quashed and set aside. Learned Counsel
5 CRWP 1499 of 2015
further submitted that the General Security Force Court
has not properly appreciated the evidence on record and
also did not provide due opportunity of hearing to the
petitioner. Learned Counsel further submitted that GSFC
as well as the appellate Court have recorded erroneous
conclusions based on irrelevant material which has
resulted in gross miscarriage of justice. Learned Counsel
submitted that no evidence has come on record against
the petitioner to prove the commission of offense under
Section 10 of the Protection of Children from Sexual
Offenses Act, 2012. Learned Counsel submitted that the
trial Court as well as the appellate Court both have failed
in appreciating that since the petitioner had denied to
wash the clothes of the parents of the prosecutrix, false
and fabricated allegations were made against the
petitioner and the petitioner was thus implicated in a false
case. Learned Counsel further submitted that the Pre-
Confirmation Authority did not apply its mind and passed a
non speaking order confirming the finding of the G.S.F.C.
Learned Counsel further submitted that the Courts /
authorities below have utterly failed in appreciating the
contradictions and omissions in the evidence of the
6 CRWP 1499 of 2015
prosecution witnesses. Learned Counsel further submitted
that when the alleged incident was stated to have been
committed in the school, it was incumbent on the part of
the prosecution to adduce the evidence of Principal and /
or the school teacher. Since no such evidence has been
adduced, according to the learned Counsel, no charge can
be said to have been proved against the petitioner.
Learned Counsel further submitted that the authorities /
Courts below, have not observed the principles of natural
justice. Learned Counsel submitted that without there
being any cogent and sufficient evidence, the petitioner
has been convicted and has also been dismissed from the
service. Learned Counsel further submitted that during
the course of trial before G.S.F.C., the petitioner was not
permitted to ask certain questions to the prosecutrix and,
thus, the trial conducted against the petitioner is in
violation of principles of fair trial. Learned Counsel,
therefore, prayed for setting aside the aforesaid impugned
orders and acquit the petitioner from the charges levelled
against him.
4. Shri Sanjiv Deshpande, learned ASGI,
7 CRWP 1499 of 2015
appearing for respondent nos. 1 to 3, opposed the
submissions advanced on behalf of the petitioner.
Learned ASGI, taking us through the record of the case,
submitted that the petitioner was provided due
opportunities to defend him and, in no case, an allegation
can lie against the respondents that the trial conducted
against the petitioner was not a fair trial.
5. After
ig having considered the arguments
advanced on behalf of the petitioner and respondent nos. 1
to 3, and on perusal of the material on record, apparently,
we do not find any substance in the objections raised on
behalf of the petitioner. The material on record reveals
that in order to prove the charges levelled against the
petitioner, total six witnesses were examined and the
petitioner was given due opportunity to cross examine
each of the said witness. The record further reveals that
though some of the questions were not allowed to be
asked to the prosecutrix in her cross examination, the trial
Court has recorded the reasons therefor. We find that
the reasons recorded by the trial Court, while disallowing
the request of the petitioner to put the said questions to
8 CRWP 1499 of 2015
prosecutrix in her cross examination, are appropriate and
proper. The trial Court had rightly disallowed the said
questions. It has to be stated that the questions which
were sought to be asked to the prosecutrix in her cross
examination could not have been asked to a tender aged
prosecutrix. The following questions were sought to be
asked by the petitioner to the prosecutrix in her cross
examination:
"i) Do you understand the meaning of
word ' sexual'?
ii) Do you understand the meaning of
private parts of the body?
iii) Did accused try to touch your anus and
vagina?
iv) Do you understand the meaning of
word "chati achi ho jaigi"?
v) Can you understand the meaining of
sexual harassment of sexual intent,
which called sexual assault. Do you
understand the meaning of sexual
assault?
vi) Did you fell that accused had sexually
assaulted you and he want to do any
forceful act with you?
vii) As you stated that you was so scared
due to the act of accused. What you
felt or presume that accused was going
to do wrong with you?
9 CRWP 1499 of 2015
Considering the nature of the questions, we are of the firm
opinion that the trial Court was right in rejecting the
request of the petitioner to put such type of questions to
the tender aged prosecutrix in her cross examination.
The record further reveals that at every stage of the
proceedings, the procedural part was explained to the
petitioner and every opportunity was provided to the
petitioner to defend himself. We do not see any infirmity
or procedural lapse in the trial conducted against the
petitioner.
Further, having regard to the evidence on record, it
does not appear to us that the trial Court has committed
any error in holding the petitioner guilty for the offense
charged against him. The facts which have come on
record through the evidence of the prosecutrix and her
mother appear us to be sufficient for holding the petitioner
guilty for an offense under Section 10 of the Protection of
Children From Sexual Offenses Act, 2012. There seems
no reason to disbelieve the evidence of the prosecutrix as
well as her mother. Though the petitioner has raised a
10 CRWP 1499 of 2015
plea of false implication, he has failed to substantiate the
same. Further, there appears no substance in the
objection raised by the petitioner that the order passed by
the appellate authority on 26th October, 2015, is a non
speaking and cryptic order. Perusal of the said order
dated 26th October, 2015, reveals that the appellate
authority has considered every objection raised before it
on behalf of the petitioner and has recorded its finding on
each of the said objection by giving elaborate reasons.
All such objections raised by the petitioner in the present
petition were raised by him before the appellate authority
and each of the said objection has been appropriately dealt
with by the appellate authority. The order passed by the
appellate authority reveals that it has duly considered the
evidence on record while recording its findings. In no
manner the said order can be said to be a non speaking, or
cryptic order. On the contrary, according to us, it is well
reasoned order and does not require any interference.
6. In so far as the other contentions raised by the
learned Counsel for the petitioner that no personal hearing
was given by the appellate authority before deciding the
11 CRWP 1499 of 2015
petition filed by the petitioner and that it amounts to
violation of principles of natural justice is concerned, the
same is also liable to be rejected in view of the law laid
down by the Honourable Apex Court in the matter of
Union of India v. Ex Constable Amrik Singh ( AIR
1991 (SC) 564 ). In the aforesaid case, the Honourable
Apex Court has held as under:
" Principles of natural justice are not attracted in
certain special enactments such as Army Act,
B.S.F.Act etc. -- under Section 117(2) of B.S.F.Act,
which is in pari materia to Section 134(2) of Army
Act, and the person aggrieved is only entitled to file a
petition but disposal of such petition does not attract
principles of natural justice -- Even in Chapter XIII of
B.S.F. Rules which deals with the petitions filed under
Section 117, there is nothing to indicate that a
hearing has to be given before disposal of the
petition. "
7. After having considered the entire material on
record, we do not see that any case is made out by the
petitioner so as to cause interference in any of the
impugned orders.
12 CRWP 1499 of 2015
8. The writ petition is devoid of any substance and
deserves to be rejected and is accordingly rejected without
any order as to costs.
(P.R.BORA) (R.M.BORDE)
JUDGE JUDGE
...
AGP/1499-15crwp
