Union Of India vs Sandeep Malik
1995 Latest Caselaw 841 Del

JUDGMENT

M. Jagannadha Rao, C.J.

(1) ADMIT.

(2) This is an appeal by the Union of India and the Director General, Border Security Force against the judgment of the learned Single Judge dated 6.4.1995 in Crl. W.P. 75 of 1993 dated 6.4.95, allowing the writ petition filed by the respondent and quashing the court-martial proceedings, and the sentence dated 27.6.92 of rigours imprisonment for 4 years and dismissal from service.

(3) The charge against the respondent (BSF constable) was one of rape of a Bangla-deshi girl, Ms. Razia Khatoon aged 10 years on 31.3.1992 in Salbagan area, on Indian soil, near the Bangladesh border. The respondent was tried by the General Security Court Martial under Sections 46,47 of the Border Security Force Act read with Section 376 IPC. He was found guilty and awarded sentence of 4 years rigorous imprisonment and dismissal from service.

(4) The learned Single Judge allowed the writ petition holding that the some of witnesses were called from the Bangladesh side on the basis of a signal message of the Commandant Bsf on the Indian side to his counterpart Commandant of the Bangladesh Rifles, without following the procedure in Section 91(4) of the Bsf Act, read with section 285 Cr. P.C. The learned Single Judge held that because of that the credibility of those three Bangla deshi foreign (including the victim) was doubtful. He also argued that the identity of the witnesses was doubtful. According to the contention of the petitioner, in the case of witnesses who are foreign nationals, the procedure envisaged by Section 91(4) Bsf Act is to issue a commission as provided in Chapter Xl of Cr. P.C. and in particular Section 285 Cr. P.C. and the procedure is mandatory. The learned Single Judge accepted the contention that a mandatory provision of procedure was violated and the trial was therefore vitiated. The conviction and sentence of 4 years rigorous imprisonment and dismissal were set aside. We have heard the counsel for the appellant and of the respondent-writ petitioner. We are of the view that, for reasons to be given below, Section 91(4) is nothing but an enabling provision and there is no violation of any procedural provision, that at the trial - as disclosed from the cross-examination - there was no dispute about the identity of the foreign witnesses, that no prejudice was caused to the petitioner, and that Court-martial proceedings could not have been set aside in those circumstances.

(5) The view taken by the learned Single Judge that the procedure of issuing a commission to summon a witnesses abroad as envisaged by Section 91(4) of the Border Security Force Act (read with Section 285 of Cr.P.C.) is mandatory and is, in our view, not correct. Section 91(4) of the Border Security Force Act reads as follows: "S.91(4): When the witness resides in a tribal area or in any place outside India, the commission may be issued in the manner specified in Chapter Xl of the Code of Criminal Procedure, 1898."

(6) Section 285 of Cr.P.C. gives the procedure for issuing a commission.

(7) It will be noticed that Section 91(4) uses the word "may be issued" and it is clear that it is an enabling provision and is clearly not mandatory. Just as there are provisions in the Civil Procedure Code . or Cr. P.C. for obtaining evidence on commission, there is procedure indicated in the Border Security Force Act also. Supposing, on a communication from the Court in India to witnesses in a foreign country, - say through officials or lawyers - the Indian Court is able to obtain the presence of the witnesses residing outside India, the evidence of such witnesses who come to India and whose evidence is so recorded does not, in our opinion, become inadmissible. It cannot be said that such evidence must be obtained in the foreign country by way of commission. Nor can it be said that the mode of summoning witnesses provided in the statute is mandatory. As long as the witnesses are willing to come to India voluntarily and give evidence and there is no dispute about the identity of the witnesses, it cannot be said that evidence of a foreign national recorded in India is less credible than evidence of the witness recorded on commission on a foreign soil. Nor is it less credible because the witness is willing to come into India and give evidence without any coercive process. There is, in our opinion, nothing detracting from the evidence of a foreign national who is examined on this side of the border. The mode of procuring his presence on this side in India, through a message from the Commandant on the Indian side to the Commandant of Bangla Rifles cannot therefore be faulted. Section 91(4) uses the word 'may' and there is no violation of any mandatory provision of law nor any prejudice shown. The view that the creditability of the evidence of the foreign national examined on Indian soil is less than what it would be if he was examined on the foreign soil, does not appeal to us. Nor the mode of summoning him to India is relevant on the question of creditability.

(8) So far as the decision in the Court-martial proceedings on evidence is concerned, it cannot be assailed on merits. Even lack of reasons is, according to decisions of Supreme Court, not a violation of any rule of law. We shall now refer to the witnesses for the limited purpose of finding out whether there was any dispute about identity.

(9) The foreign or Bangladeshi nationals examined are three. The trial record shows that the accused had no objection to the said witnesses being called and examined on the Indian side, near the border, during the court-martial proceedings. No objection to the procedure of summoning was raised. This is clear from the following record: "AT this stage of the proceedings, the Prosecutor submits before the Court that his next three essential witnesses are Bangladeshi nationals. He further submits before the Court that they will be made available to depose before the Court near B.I. No. 842/1/5 under Changra border BOP. The Prosecutor requests the Court to examine the above mentioned Bangladeshi nationals (witnesses) near Bp No. 842-1/S on 24th June,1992.

(10) The defense has no objection.

(11) The Court, after considering the submission of the Prosecutor and considering the journey period involved, decides to adjourn till 10.30 hrs. on 24th June,1992 for re-assembling at zero line near Bp No. 842-1/S for examination of the Bangladeshi nationals (witnesses)"

(12) It will be seen that the defense had no objection to this procedure being adopted. It was not contended that the procedure under Section 91(4) of the Border Security Force Act, must be followed.

(13) The victim Public Witness 6 Miss Razia Khatoon was examined on 23.6.92 on the Indian side at zero line. She gave her name, father's name, mother's name, place of residence. She identified the accused and said he paid her Rs. 20.00 and Jalabies, and narrated the incident. She narrated the subsequent events too and later complaints, medical examination etc. There is not a single question disputing her identity, put during cross-examination. Public Witness 7 is the mother of the victim and also gives various details of events soon after the incident. There is no question in cross-examination disputing the identity or of her daughter's identity. Public Witness 6 is the lady doctor who says she examined Public Witness 6(the victim) and there is no question put to her in the cross-examination. There is again no question put to her in cross-examination either regarding her identity or that of PWs 6 and 7.

(14) There are the only 3 Bangladeshi witnesses examined. During the final proceedings of the conviction, the accused stated as follows (see p. 40 of the Court Martial record): "THE defense counsel, on behalf of the accused submits that he is very young and his father is from a Bsf Havildar and he was already suffered from 2 months and 16 days in force custody and he prays for mercy in the matter of sentence."

(15) Later, the sentence was pronounced awarding dismissal and four years rigorous imprisonment. This was on 24th August,1992.

(16) It is true that Public Witness 6 (the victim), Public Witness 7 (her mother) and the lady Doctor, Public Witness 8, who are Bangladeshi witnesses were called for evidence on this side of Zero Line, by means of a Message on 11.4.92 (p. 48 of record) by the Commanding Officer on the Indian side addressed to the Commanding Officer on the Bangladesh side. But as pointed out above, there was no dispute about identity of PWs 6,7 and 8. As stated earlier, there was 'no objection' to the procedure adopted for summoning Pws 6,7 and 8. In addition, Section 91(4) is an enabling provision indicating the procedure to take evidence of witnesses abroad. The fact that instead of issuing commission, the witnesses were brought into the Indian side for giving evidence cannot, in our view, vitiate the trial. The identity of witnesses having not been in dispute, the creditability of the witnesses cannot be doubted.

(17) The view of the learned Single Judge is therefore incorrect. The appeal is allowed and the judgment of the learned Single Judge is set aside and the dismissal and sentence are restored.

(18) We are told that the accused was released after the judgment dated 6.4.1995 and before we passed the stay order on 25.4.95. It shall be open to the appellant to, the respondents shall take steps to apprehend the accused and detain him for the purpose of his undergoing the remaining period of the sentence in accordance with law. Appeal allowed. No costs.