Hoshiyar Singh vs Union Of India & Ors
2023 Latest Caselaw 4744 Cal

Form No.J(2)


                IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE
Present :

The Hon'ble Justice Raja Basu Chowdhury


                             WPA 7572 of 2009

                                Hoshiyar Singh
                                       v.
                             Union of India & Ors.


For the petitioner       :       Mr. Debdutta Basu

For the respondents      :       Mr. Sauvik Nandy

Heard on                 :       4th August, 2023.

Judgment on              :       4th August, 2023.


Raja Basu Chowdhury, J:

1. The present writ application has been filed, inter alia, challenging

the order dated 25th June, 2008 passed by the Summary Security

Force Court (hereinafter referred to as the "SSFC") including the

sentence of dismissal of the petitioner from service, and the order

passed by the Appellate Authority dated 15th January, 2009.

2. The petitioner claims to have joined the Border Security Force on

28th February, 2002 in the "D" Company of 108 of the Border

Security Force (hereinafter referred to as the "BSF") and was

posted at BSF, Chapghoti, Malda, when a charge-sheet dated 8th

May, 2008 was issued by the Commandant in terms of Appendix

VI, Rule 53(2) of the Border Security Force Rules, 1969

(hereinafter referred to as the "said Rules") and served on the

petitioner.

3. The charge-sheet, inter alia, was not only served on the petitioner

but also against one Gyani Ram who was a co-accused. Both the

said Gyani Ram and the petitioner were tried by the SSFC, in a

summary trial. After conclusion of the trial by an order dated 25th

June, 2008, both Gyani Ram as also the petitioner were held

guilty in respect of second charge, however, in respect of the first

charge both were held not guilty.

4. Notwithstanding, both the accused being held guilty only in

respect of the second charge, in case of the said Gyani Ram, he

was sentenced to the following punishment;

a) To be reduced to Constable rank

b) to forfeit five years of seniority and service for the purpose of

promotion.

c) and also forfeited pay and allowances for a period of one

month;

while in case of the petitioner he was sentenced to dismissal

from service.

5. Being aggrieved, the petitioner preferred a statutory appeal

within the meaning of Section 117(2) of the Border Security Force

Act, 1968 (hereinafter referred to as the "said Act"), before the

Director General, BSF. By an order dated 15th January, 2009, the

Director General, BSF, as an Appellate Authority taking into

consideration all aspects of the matter was, inter alia, pleased to

reject the said appeal.

6. Challenging the aforesaid orders, the present writ application has

been filed.

7. Mr. Basu, learned advocate representing the petitioner, submits

that notwithstanding both Gyani Ram and the petitioner being

charged with the same offence and notwithstanding both being

held guilty, only in respect of second charge, two different

sentences have been awarded, to the two different accused. This,

according to the petitioner is a discrimination meted out to him

and is violative of Article 14 of the Constitution of India.

8. Mr. Basu then contends that the order of the SSFC holding the

petitioner guilty is perverse and based on no evidence. By

drawing attention of this Court to the records of the proceeding,

inter alia, including the evidence of the petitioner, he submits

that the petitioner's evidence was taken by compelling him to

accept the guilt. According to Mr. Basu, the SSFC could not have

acted on the basis of the confession of the petitioner, since, the

said confession was not free or voluntary and did not constitute a

confession within the meaning of Section 24 of the Indian

Evidence Act, 1872.

9. The informant was not examined and finding reached by the

SSFC was based on hearsay. There was no eyewitness of the

incident complained of and that the petitioner has been made a

victim of circumstances. Reliance has been placed on the

provisions of Section 14 to Section 18 of the Indian Contract Act,

1872, to, inter alia, demonstrate what would constitute 'free

consent' and 'undue influence'.

10. By placing reliance on a judgment delivered by this Court in

the case of Robert Xess v. Union of India & Ors., reported in

2011 (4) CHN (Cal.) 176, he submits that unless the informant

is examined, the delinquent would lose the valuable right of

cross-examining him and would thereby be prejudiced. The

Division Bench of this Hon'ble Court in an identical case, while

taking note of the failure on the part of the prosecution to

examine the informant, had held that the informant was a vital

witness to the incident and depriving the opportunity to cross-

examine such a vital witness, would tantamount to violation of

natural justice.

11. By placing reliance on a judgment delivered by the Hon'ble

Supreme Court in the case of Roop Singh Negi v. Punjab

National Bank and Others., reported in (2009) 2 SCC 570, he

submits that SSFC Court ought to have proceeded on the basis of

materials on record. The evidence collected during the

investigation by the Investigating Officer against the accused by

itself could not be treated to be evidence in the proceeding.

Unless, the witness is examined to prove the charge, the enquiry

would stand vitiated. In any event, no sentence could have been

pronounced on the basis of a mere confession. The Appellate

Authority also did not examine the questions put forward by the

petitioner and had merely brushed aside the same. The aforesaid

order dated 25th June, 2008, passed by the SSFC and the

sentence, dismissing the petitioner from service cannot be

sustained, the same should be set aside and the petitioner

should be reinstated in service.

12. Per contra, Mr. Nandy, learned advocate representing the

respondents, had placed before this Court the provisions of said

BSF Act and Rules framed thereunder. He submits that

although, in this case the second charge was proved, both in

respect of Gyani Ram as also in respect of the petitioner, two

different sentences were awarded to the two different accused, on

the basis of proceeding held before issuing such sentences.

13. By placing reliance on Rule 101 and Rule 151 of the said Rules

he submits that before the sentence is pronounced, it is

obligatory for the authority to ascertain either on its own or on

the basis of the evidence, the following facts:-

General character of the accused, age, service, rank and any

recognized 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 any officer exercising

authority under Section 53; the length of time he has been

in arrest or in confinement on any previous sentence, and

any decoration, or reward, or to which he may be in

possession or to which he may be entitled.

14. Mr. Nandy, thereafter, by placing reliance on the proceeding

before the sentence submits, while in the case of Gyani Ram, he

was found not to have been previously convicted since his

enrolment, however, in the case of the petitioner, he was found to

be convicted on four several occasions, during his entire tenure

which included one occasion during the past twelve months. The

aforesaid proceeding before sentence clearly records that on three

occasions the petitioner was found to have absented without

leave and on one occasion, he was punished for violation of good

order and discipline. The aforesaid factors were taken into

consideration by the SSFC and the same weighed in favour of the

accused Gyani Ram and against the petitioner, while awarding

the sentence.

15. By placing the order passed by the Appellate Authority in

detail, it is submitted that the Appellate Authority had taken into

consideration all aspect of the matter while rejecting the Appeal.

The petitioner chose not to cross-examine any of the prosecution

witnesses. Having chosen not to cross-examine the prosecution

witnesses, it does not lie in the mouth of the petitioner to

complain that the informant was not produced. In any event,

from the evidence on record, the involvement of the petitioner

would be clear. There is no irregularity on the part of the

authorities either in holding the petitioner guilty or in inflicting

the punishment of dismissal. In support of his contention that

when the two opinions are possible, the Court should not

substitute its views with that of the Disciplinary Authority

reliance has been placed on the judgments of the Hon'ble

Supreme Court in the case of State Bank of Bikaner and

Jaipur v. Nemi Chand Nalwaya, reported in (2011) 4 SCC 584,

as also the judgment delivered in the case of Om Prakash v.

Union of India and Others, reported in (2015) 8 SCC 705. In

the facts as stated above, he submits that the writ application

deserves to be dismissed.

16. Heard the learned advocates appearing for the respective

parties and considered the materials on record. As would appear

from the charge-sheet the petitioner was a co-accused along with

Gyani Ram in respect of the following charges: -

"1st CHARGE     COMMITTING A CIVIL OFFENCE THAT IS TO SAY
BSF ACT         CRIMINAL MISCONDUCT FOR HAVING BEEN A
SECTION 46      PUBLIC SERVANT BY ABUSING THEIR POSITION
                AGREES THEMSELVES FOR               ANY   PECUNIARY
                ADVANTAGE FOR AN OFFENCE SPECIFIED IN
                SECTION    13(1)(E)      OF   THE   PREVENTION      OF
                CORRUPTION ACT, 1988 PUNISHABLE UNDER
                SECTION 13(2) OF THE SAID ACT.
                     In that they,

on the intervening night of 09/10 Nov'07, when No. 882101295 HC Gyani Ram and No02145545 CT Hoshiyar Singh of 'D' Coy 108 Bn BSF who were deployed at addl ambush point No.4 of BOP Chapghati, connived with an un-identified civilian boy and agreed to accept Rs 7000/- per pair for crossing of cattle heads for themselves by abusing their position as a public servant for pecuniary advantage while performing border ambush duty of said ambush point and allowed to cross over 12 to 15 pairs of cattle heads from India to Bangladesh side between 1930 hrs to 2000 hrs through their AOR.

2nd Charge      AN ACT PREJUDICIAL TO GOOD ORDER AND
BSF Act         DISCIPLINE OF THE FORCE.
Section 40





                      In that they,

on the light intervening of 09/10th Nov'07, while performing ambush duty at Addl. Ambush Point No.4 Ex - BOP Chapghati has allowed to cross 12 to 15 pairs of cattle heads from India to Bangladesh side between 1930 to 2000 hrs through their AOR with connivance of smugglers."

17. Both the co-accused were tried before the SSFC. That a total of

9 prosecution witnesses were examined before the SSFC and 6

witnesses were examined on the order of the Commandant and

their evidence were recorded as per Rule 45 of the said Rules.

Although, it has been strenuously argued by the learned

advocate for the petitioner that in the absence of Ram Kumar

being examined as witness, the petitioner has suffered prejudice,

I am afraid and am unable to accept the same. I find that the

petitioner had not bothered and had declined to cross-examine

the 9 witnesses examined before the SSFC. Having regard to the

aforesaid, it cannot be said that the petitioner had suffered any

prejudice by reasons of Ram Kumar not being examined.

18. Admittedly, both the petitioner as also the other accused Gyani

Ram were on duty on the intervening night of 9th and 10th

November, 2007. Factum of cattle crossing over to Bangladesh

from India from the additional ambush point no.4 was

established. Since, the petitioner has chosen not to cross-

examine any of the witnesses, it is clear that the petitioner has

not put forward his defense case. The aforesaid 9 witnesses had

also corroborated the prosecution case. I find that the SSFC on

the basis of the evidence on record, inter alia, the evidence of the

prosecution witness, has arrived at a conclusion that both the

petitioner as also the co-accused are guilty of the second charge.

I do not find any reason to interfere with the same, especially

when this Court is not called upon to re-appreciate evidence. In

this context, I must note that the aforesaid matter does not

appear to be a case, which is based on no evidence or where the

finding reached by the SSFC can be said to be perverse. It is well

settled that a judgment is an authority for what it decides and

not what can be logically deduced therefrom. A slight variation in

the facts may alter the final outcome. In the case of Roop Singh

Negi. (supra), no witnesses were examined to prove the

documents, such is not the case here. In the case of Robert

Xess. (supra), since, the informant was not examined, the

Division Bench of this Hon'ble Court based on the facts of the

said case had concluded that the delinquent had been denied the

opportunity of cross-examination. In this case, nine several

witnesses were examined by the SSFC, the petitioner did not

bother to examine even one witness. As such, the petitioner

cannot complain of any prejudice. None of the aforesaid

judgments relied on by the petitioner comes in his aid.

19. The only other point canvassed by the petitioner is with regard

to discrimination in awarding of the punishment between the

petitioner and the co-accused. I find that the petitioner claims to

have been discriminated, inasmuch as the co-accused despite

being levelled with the same charges and despite both being held

guilty of the second charge, the co-accused had been given a

lesser punishment, while in the case of the petitioner, sentence in

the form of dismissal has been awarded. I, however, find that

before the sentences were awarded, a proceeding before the

sentence took place wherein the SSFC had taken note of all

particulars as are required in terms of Rule 101 and Rule 151 of

the said Rules, for the purpose of considering any mitigating

circumstances, for mitigating the punishment. I find that in the

case of the petitioner, he had been convicted on four several

occasions during his service tenure, while in the case of the

Gyani Ram, the co-accused, there had been no previous

conviction, at all.

20. Having regard to the aforesaid, it cannot be said that the

respondents had discriminated against the petitioner. I am

further of the view that the SSFC is the best judge to decide in

the facts of the case what punishment was to be awarded, having

regard to the gravity of the charge, the past conduct, past

convictions and other factors as statutorily provided to be taken

note of.

21. From the order passed by the Appellate Authority it would

appear that the Appellate Authority had duly considered the

matter in detail and has passed a reasoned order.

22. In the facts and circumstances as stated above, I am of the

view that no interference is called for. The petitioner has also not

been able to demonstrate violation of principles of natural justice

or any jurisdictional error committed by the SSFC, either in

holding the petitioner guilty or in awarding the punishment of

dismissal from service or in the Appellate Authority, dismissing

the appeal.

23. In such circumstances, the writ application fails and is

accordingly dismissed.

24. There shall, however, be no order as to costs.

25. Urgent photostat certified copy of this order, if applied for, be

given to the parties upon compliance of necessary formalities.

(Raja Basu Chowdhury, J.)

sb.