Hargu Lal Gautam vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2051 Del

JUDGMENT

Swatanter Kumar, J.

1 The petitioner joined as a Constable in the Border Security Force on 9.8.1980. He was first posted to Head Quarter 80 Battalion from where, on promotion, he was transferred to Head Quarter 63 Battalion on 15.3.1991. It is stated that on 16.3.1993 when the petitioner was deputed at Barmer, Rajasthan, the petitioner attacked a constable M. Murti with a sharp-edged weapon i.e. Gandasa, at his neck and head. As a result of this attack the constable suffered injuries on his head, neck and wrist. The petitioner was apprehended after the incident from his barrack and was arrested and detained at Quarter Guard. Thereafter, vide order dated 16.3.1993, the petitioner was placed under close arrest and the matter was reported to P.S. Kotwali Barmer. The petitioner was charge sheeted and tried by General Security Force Court of the BSF for an offence committed under Section 46 of the Border Security Force Act, to say attempt to murder punishable under Section 307 of the Indian Penal Code. He was tried by General Security Force Court and Sh. K.N. Sual, the Deputy Commandant of STC BSF, Kharkan Camp, was appointed as the Defending Officer. It is stated that on 10.9.1996, the respondents complied with the basic requirements of Rule 63 of the BSF Rules, 1969 only on paper and in fact, no proper opportunity was afforded to the petitioner to defend himself. According to the petitioner, he was deprived of his valuable right to defend himself in the General Security Force Court for the alleged offence. It is further stated that the prosecution was conducted by Sh. V.K. Kanda, JSO, an expert in law and the petitioner was not permitted to be defended by an expert. Finally, after confirmation of sentence against the petitioner, the petitioner was terminated from service on 7.3.1997 i.e. with effect from the date of promulgation of sentence and findings against the petitioner. According to the petitioner the Defending Officer, Sh. K.N Sual, was forced upon the petitioner and he did not defend the petitioner properly, resulting in conviction of the petitioner. The order dated 7.3.1997 is questioned by the petitioner in the present writ petition on the ground that the same is arbitrary, illegal, in violation of the prescribed Rules and procedure.

2. The respondents filed a counter affidavit where they have stated as under:

Ex. No. 800015187 Lnk Hargulal Gautam, son of Shri Nanak Chand, Resident of village and post office Shiwali, District Bulandshehar (U.P.) was enlisted in Border Security Force on 9.8.1980. After completion of his basic recruit Trg. at BTC BSF Academy Tekanpur, Gwalior (MP) posted to 80 Bn BSF and served in 80 Bn BSF up to 5/8/87 and further posted to 63 Bn BSF and promoted as LNK w.e.f. 15/04/1991. In that he while at Bn HQ 63 Bn BSF Barmer (Rajasthan) on 16/3/1993 he was detailed for patrolling duty of unit area and was ordered to sleep in unit family welfare Centre. The duty of the petitioner was from 2300 hrs to 0100 hrs. After completion of his duty, he went to barrack and took the 'DAH' from his box and further went to Officers Mess where CT (Now LNK) M. Maruti was sleeping. He went near the bed of CT M Maruti and struck him with 'DAH' on his left side of neck. Getting injury on his neck CT M. Maruti awaked and started crying. LNK Hargulal gave him another strike by 'DAH' on the head of CT M Maruti and further tried to kill him by third strike of the 'DAH' which was obstructed by CT M. Maruti by his left hand. On the same night he was close arrested under suspension w.e.f. 16.3.1993. fter hearing by the Comdt. 63 BSF a ROE was ordered under Section 46 of the BSF Act 1968 for committing a Civil Officence that is to say attempt to murder, punishable under Section 307 I.P.C. Accordingly GSFC was held on 14.9.1996 and subsequently revision of trial was held on 8.2.1997. During the trial by GSFC, the petitioner pleaded guilty to the charge. The individual (LNK Hargulal Gautam) was awarded punishment DISMISSAL FROM THE SERVICE. Accordingly he was dismissed from service w.e.f. 7.3.1997 (FN) i.e. the date of promulgation of sentence to the petitioner and SOS from this unit w.e.f. 7.3.1997 (FN).

3. To the counter affidavit of the respondents, no rejoinder was filed by the petitioner refuting the facts averred in the counter affidavit. The charge against the petitioner reads as under:

CHARGE SHEET

The accused, No. 800015187 L/NK HARGU LAL GAUTAM of 63 Battalion BSF, is charged with:

BSF ACTS SECTION - 46

COMMITTING A CIVIL OFFENCE THAT IS TO SAY,

ATTEMPT TO MURDER, PUNISHABLE UNDER SECTION 307 IPC

in that he, at about 0115 hrs on 16-03-93, attacked on No. 37009742 CTM. Maruti of this unit, with a 'DAH', while he was sleeping in a tent within the unit Officers Mess premises, with intent to kill him and thereby wounded the said individual on left side of neck, head and left hand near palm.

 Place : Barmar (Raj)                                             (SAYAR SINGH)
Dated : 16 March 93.                                              COMMANDANT
                                                                   63 BN BSF 
 

4. Vide letter dated 10.9.1996, in terms of Rule 63 of the BSF Rules, the petitioner was asked to communicate his willingness (in writing) for engaging a civil counsel, at his own cost or a Departmental person. Thereafter, as it appears from the Record, that the Court assembled on 7.3.1997 and based upon the plea of guilt taken by the petitioner, his services were terminated. The plea of guilt reads as under:

CHARGE SHEET

The Charge Sheet is Marked 'B-2', read signed by the Law Officer and annexed to the proceedings.

ARRAIGNMENT

The accused is arraigned upon the charge in the above mentioned charge sheet.

Q-3 Are you guilty or not guilty of the charge against you, which you have heard/read?

A-3 Guilty.

5. During the course of arguments, the learned Counsel appearing for the petitioner had stated that the plea of guilt had been forcibly extracted from the petitioner and in fact, the Defending Officer had also not discharged his duties. We had directed the respondents to produce the original records in Court, which were subsequently produced. It is clear from the said record that the petitioner had pleaded guilty without any pressure and had in fact, pleaded that he is a poor person with a large family and therefore he should not be convicted. Taking the plea of guilt, the punishment was awarded to the petitioner. We may notice that from the original record it is also clear that the witnesses who were examined while recording evidence were also offered for cross-examination to the accused, but the same was declined by him. This has been signed by the petitioner, Defending Officer and the Members of the Court. The stand taken by the petitioner before this Court is not supported by the original records as in the Revision preferred by him none of these issues were raised by him. Furthermore, he had also given up the grounds and prayed for mitigation of sentence. Besides all other factors the statement of the doctor was recorded who had examined the injured and had found three injuries on his neck, head and wrist and that these injuries were caused by a sharp-edged weapon. The sentence of conviction was reduced by the Revisional Authority restricting to the period undergone, however, penalty of dismissal was not interfered with.

6. In regard to the plea of guilt, reference can be made to the judgment of this Court in the case of Ex. Nk. Mehar Singh v. Union of India and Ors. W.P.(C) No. 4281/2001 decided on August 31, 2006 where the Court held as under:

3. During the course of hearing, the petitioner had pleaded guilty and the court, after complying with the requirements of the relevant provisions, had recorded the plea of guilt in the proceedings held on 21st October, 2000. The relevant part of the court of proceedings reads as under:

ARRAIGNMENT

Q. By the court How say you 1484717N Nk/Clk(GD)

Question to Mehar Singh) are you guilty or not guilty of the said accused charge, preferred against you?

Answer Guilty

Sd/-

(Rajat Rastogi)

Col

The Court

21 Oct 2000Q.

Are you guilty or/not guilty of the _____________charge?

Question to accused

PLEA OF GUILTY : COMPLIANCE OR AR 115(2)

The accused having pleaded guilty to the said charge the provision of Army Rule 115(2) are here complied with.

The following procedure was adopted in respect of accused person:

Before recording the plea of guilty offered by the accused, the court explained to the accused the meaning of the charge to which he had pleaded guilty and ascertained that the accused had understood the nature of the charge to which he had pleaded guilty. The Court also informed the accused the general effect of the 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 his plea of guilty accepts and records the same. The provisions of Army Rule 115(2), are thus complied with.

Sd/-

(Rajat Rastogi)

Col

The Court

21 Oct 2000

4. After the summary of evidence was read and explained to the accused, on that very day, he was called upon to make a statement if he so desired. The petitioner chose not to make any statement and after cautioning the accused in terms of Rule 118 of the Army Rules, the verdict of the court was recorded on the plea of guilt awarding the afore-stated punishment to the petitioner.

5. From the original record produced before us, it appears that there is no application or statement made on behalf of the petitioner requiring any documents after recording of summary of evidence. The pleas taken by the accused before the court are without substance inasmuch as he made the plea of guilt on 21st October, 2000 and in the appeal/petition he had raised some grounds with regard to non-supply of summary court martial proceedings for which we have already noticed, there is the receipt duly acknowledging the said documents. Even in the appeal, nothing was stated as to who had given him the alleged physical threat. The plea that the petitioner had pleaded not guilty at the initial stage is certainly an after-thought. Even to a query raised before the court, the learned Counsel appearing for the petitioner was not able to say as to where was the petitioner for a long period of 91 days i.e. from 8.5.2000 to 8.8.2000. In the entire writ petition, there is not even a single justification given in regard to the admitted absence of the petitioner. This was not a case where it would have been difficult for the respondents to prove the case as it was record based. The petitioner has taken the grounds in the present writ petition which are without much substance.

6. Learned Counsel appearing for the respondents while relying upon a judgment of the Supreme Court in the case of Dharmarathmakara Raibahadur Aroot Ramaswamy Mudaliar Educational Institution v. The Educational Appellate Tribunal and Anr. contended that where a delinquent admits the charges, pleads guilty and offers no defense, there can be no violation of principles of natural justice or the rules. It is further submitted that the respondents, in any case, have fully complied with the requirements of the rules as is clear from the above recorded proceedings and in complete substantial spirit, they had satisfied the requirements of Army Rules 115(2) and 118 and general principles of law applicable to a case of trial by summary court martial. The reliance has also been placed upon a Division Bench judgment of this Court in the case of Chokha Ram v. UOI and Anr. CW No. 7021/2002, decided on 5th March, 2004 wherein the Bench dealing with somewhat similar situation held that the plea of guilt properly recorded, by itself, can form basis of an order of conviction and held as under:

15. Trial of the petitioner by SSFC was held in the presence of Shri Yash Paul, Assistant Commandant, 19 Bn, appointed as Friend of the petitioner and he was readily available to him for assistance, if he so required. The plea regarding breach of Rule 157 is, in the circumstances, totally unsustainable.

To a faint attempt from the side of the petitioner that 'plea of guilty' notwithstanding, the prosecution was otherwise obliged to substantiate the charge by producing all relevant evidence, relying on two decisions of Supreme Court in Kishan Trimbak Kothmula and Ors. v. State of Maharashtra & Dharmarathmakara Rai Bahadur Arcot Ramaswamy Mudaliar Educational Institutions v. Educational Appellate Tribunal and Anr. , the respondents sought to maintain that in view of plea of guilty on the part of petitioner, there was no necessity of examining any witness to prove the charge against the petitioner. The latter was a case where respondent No. 2, who was appointed as Lecturer in appellant institution, applied for leave for three years for doing Ph.D., which request was, however, not acceded to. Later on, she applied for extra ordinary leave for one year for doing M. Phil and she gave an affidavit that she would produce proof of registration in M. Phil course by a particular date, falling which she would joint duty by the given date. The respondent No. 2 did not get herself registered for M. Phil rather she got herself registered for Ph.D. Course. The appellant institution on coming to know of this fact, sent a registered letter to respondent No. 2 to join duty by a particular date but the respondent No. 2 in spite of receipt of letter, did not do so. A notice was sent to her and after considering her reply thereto, her services were terminated. In the facts of that case, the Supreme Court laid down:

Giving of opportunity is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires but this cannot be in a case where allegations and charges are admitted and no possible defense is placed before the authority concerned. What enquiry is to be made when one admits violations? Respondent 2 had admitted that she did not joint M.Phil course. It is also an undisputed fact that she did not report for duty even when she had given an undertaking to do so. In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity, no worthwhile explanation is forthcoming; as in the present case it would not be a fit case to interfere with termination order.

17. In the present case, a bare reading of averments in the petition discloses that the petitioner had failed to carry out lawful command of his superior officer, any excuse/explanation notwithstanding and pleaded guilty in his statement during the course of record of evidence and also before the SSFC. It was, in the given situation, not incumbent on the part of the authority holding Summary Security Force Court to require the department to produce evidence to prove the charge against the petitioner.

7. In the present case, the record does not reflect breach of any rules as well as the principles of natural justice. The petitioner was unauthorisedly absent for a long period and it was a repeated performance of indiscipline within an year. Forces are required to maintain discipline and unauthorized absence can hardly be ignored particularly when the petitioner is unable to place on record even now any reasonable explanation much less a sufficient cause for his unathorised absence. It was obligatory on the part of the petitioner to raise before the authorities the reason for his absence. Having failed to discharge the onus placed upon him in the case of admitted unauthorised absence, we are unable to accept the contentions raised on behalf of the petitioner. In regard to quantum of sentence, there is hardly any scope for interference as the petitioner has already undergone the awarded imprisonment which was even reduced by the concerned authorities.

8. For the reasons afore-stated, we find no merit in this petition. The same is dismissed, while leaving the parties to bear their own costs.

7. Keeping in view the fact that there has been substantial compliance to the provisions of the Act, the rules framed there under and the fact that the charge against the petitioner was supported by evidence of the doctor and the plea of guilt was accepted by the petitioner himself, we are of the considered opinion that the proceedings of the General Security Court Force do not suffer from any error of law or jurisdiction. Thus, this writ petition is dismissed, while leaving the parties to bear their own costs.