Ex. Const. Raj Kumar vs Union Of India
2008 Latest Caselaw 2050 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 LPA No. 409 of 2004

                                 Reserved on: November 04, 2008
                                 Date of judgment: November 21, 2008

        EX.CT.RAJ KUMAR                            ..... Appellant
                     Through: Mr. Bikram Singh and Mr. Vikrant
                     Yadav, Advocates.

                     versus

        UNION OF INDIA                            .... Respondents
                      Through: Mr. A.K. Bhardwaj, Advocate.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE DR. JUSTICE S. MURALIDHAR

        1. Whether Reporters of local papers may be
        allowed to see the judgment?                            Yes
        2. To be referred to the Reporter or not?               Yes
        3. Whether the judgment should be reported in Digest?   Yes


                              JUDGMENT

21.11.2008

Dr. S.Muralidhar, J.

1. This appeal is directed against the impugned order dated 18th January

2002 passed by the learned Single Judge dismissing the Appellant‟s Civil

Writ Petition No. 410 of 2002.

2. The Appellant was enrolled with the Border Security Force („BSF‟) as

a Constable on 8th January 1989. In July 2000 he was posted on the Indo-

Bangladesh Border. On 29th July 2000 he was on duty at No.2 BOP

Kanchantar along with Constable Narendra Prasad from 7 am in the

morning. There are two versions of what happened on that day. According

to the Adjutant Mange Ram he along with Constable/Driver Bharat Singh LPA No.409 of 2004 page 1 of 11 were coming from BOP Alipur towards BOP Kanchantar. At about 8.15 am

when he reached OP No.1 of BOP Alipur he noticed 25 to 30 cattle heads

going from the Indian side to the Bangladesh by the side of OP No.2 of

Kanchantar BOP along the bandh. According to the Adjutant when he

reached OP No.2 of BOP Kanchantar he observed that the Appellant

Constable Raj Kumar was on the OP Tower and the Constable Narendra

Kumar was sitting in the OP hut. On questioning them as to how cattle were

found going from India to Bangladesh in their presence, they failed to give

any reply. He then summoned the BOP Commandant Kanchantar SI C.K.

Muddappa to the site showing him the fresh hoof marks of cattle heads

going towards Bangladesh side and fresh cow dung. He directed the SI to

change the personnel at the OPs.

3. The Appellant‟s version is different. According to him at about 8 am

20 to 25 cattle heads came from the Bangladesh side and started crossing

near the Indian border. He then told Constable Narendra Prasad that the

Bangladeshi cattle should be pushed back. Some cattle from the Indian side

were also crossing from the area which was a routine occurrence. The

Appellant admits that the Adjutant Mange Ram came from the BOP Alipur

side on a motor cycle and enquired about the cattle and that Constable

Narendra Prasad replied that cattle were from the Bangladesh and crossing

near the Indian border and were just being pushed back. The Adjutant

Mange Ram then showed them the foot marks, the cow dung and dirty water

and the Appellant and Narendra Prasad replied that these were of the Indian

cattle which were crossing there. However, upon questioning by SI C.K.

Muddappa they replied that they had not caused any cattle to cross from LPA No.409 of 2004 page 2 of 11 India to Bangladesh.

4. It appears that on 29th July 2000 a report was prepared against the

Appellant that he had while on duty at OP No.2 BOP Kanchantar

"improperly and without authority allowed to cross approximately 20 to 30

cattle heads towards Bangladesh" and thereby committed an act "prejudicial

to the good order of the Force" in terms of Section 40 of the Border Security

Force Act, 1968 („BSF Act‟). Two days thereafter on 31st July 2000 the

hearing of the charge and recording of evidence commenced. On the side of

the prosecution Mange Ram, the Adjutant of 102 Batallion was examined as

PW-1, SI C.K. Muddappa as PW-2, Constable Bharat Singh as PW-3,

Constable Santan Singh as PW-4, Constable Ramesh Chand as PW-5 and

Inspector Mohan Singh as PW-6. The examination of these witnesses

concluded on 4th August 2000 itself. Thereafter the statement of the

Appellant was recorded on the next date i.e. 5th August 2000. Additional

evidence was recorded on 10th September 2000 of all these witnesses and a

further statement of the accused was recorded.

5. At the end of the proceedings on 27th September, 2000 a charge sheet

was issued to the Appellant in terms of Rule 53(2) of the BSF Rules, 1969

(„BSF Rules‟) to the effect that while on duty at OP No.2 of Kanchantar

BOP, the Appellant had shown negligence in the discharge of his duties and

had "improperly and without authority allowed to cross approximately 25 to

30 cattle heads towards Bangladesh." On the very next date i.e. 28th

September 2000 the Commandant passed an order finding the Appellant

guilty of the charge and sentenced him to be dismissed from service.

LPA No.409 of 2004 page 3 of 11

6. The appeal filed by the Appellant was rejected and this was conveyed

to him by a letter dated 19th July 2001. His further representation was

rejected on 17th October 2001. Thereafter the Appellant filed Writ Petition

(C) No. 410 of 2002 in this Court. By the impugned order, the learned

Single Judge rejected the petition holding that "the matter having been duly

considered by the concerned authorities, it is not a fit case where any such

infirmity is shown calling for interference under Article 226 of the

Constitution of India."

7. We have heard the submissions of Mr. Rana Mukherjee, learned

counsel for the Appellant and Mr. A.K. Bhardwaj, learned counsel appearing

for the Respondent. The charge against the accused was that he had

"without authority allowed to cross" approximately 25 to 30 cattle heads

"towards Bangladesh". The Appellant has been charged with violating good

order and discipline "in terms of Section 40 of the BSF Act." In order to

appreciate the severity of this charge, reference may be made to Section 40

which reads as under:

"40. Violation of good order and discipline.-Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline of the Force shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned."

8. It is clear that the punishment for the offence under Section 40 of the

BSF Act is imprisonment for a term which may extend to seven years. The LPA No.409 of 2004 page 4 of 11 provision is widely worded to include any act "prejudicial to good order of

the Force" and the trial is to be held by a Summary Security Force Court

constituted in terms of Section 64 of the BSF Act. In the instant case the

trial was in fact by the Summary Security Force Court presided over by the

Commandant. Section 74(2) indicates that a Summary Security Force Court

is usually convened where there is some grave reason for the immediate

action to be taken. The procedure to be adopted by the Security Force Court

is contained in Chapter VII of the Act. Section 87 clearly mentions that "the

Indian Evidence Act, 1872 shall subject to the provisions of this Act, apply

to all proceedings before a Security Force Court." Under Section 98,

evidence of previous convictions and general character can also be taken by

the Security Force Court. Under Section 114 the findings and sentence of a

Summary Security Force Court shall not require to be confirmed, but may be

carried out forthwith except where it is held by an Officer equivalent to the

rank of Superintendent of Police. It is clear therefore that Section 40 talks of

a criminal offence which is punishable with imprisonment and that, except

to the extent indicated to the contrary elsewhere in the BSF Act the Indian

Evidence Act applies to all such trials.

9. In Lt. Col. Prithi Pal Singh Bedi v. Union Of India (1982) 3 SCC

140, while considering the provisions of Army Act, 1950, which has

inspired the BSF Act, 1968, the Supreme Court observed that "A person by

enlisting in or entering Armed Forces does not cease to be a citizen so as to

wholly deprive him of his rights under the Constitution." It was further

observed: "A marked difference in the procedure for trial of an offence by

LPA No.409 of 2004 page 5 of 11 the criminal court and the court martial is apt to generate dissatisfaction

arising out of this differential treatment." While reiterating these

observations in Union of India v. Charanjit S. Gill (2000) 5 SCC 742, the

Supreme Court emphasized that "Judicial approach by people well-versed in

objective analysis of evidence trained by experience to look at facts and law

objectively, fair play and justice cannot always be scarified at the altar of

military discipline. Unjust decision would be subversive of discipline." In

Ram Paul v. Union of India, 2005(83) DRJ 718, a Division Bench of this

Court emphasized, the need for the Summary Security Force Court under the

BSF Act, 1968 to strictly adhere to the procedure mandated by the BSF Act.

Reference may also be made to Ex.-Constable Driver Bhagirath Singh v.

Union of India 122(2005) DLT 134, where the importance of

proportionality of the sentence was emphasised.

10. Keeping the above provisions in mind we proceed to examine the

evidence adduced by the prosecution in support of the charge brought

against the Appellant. The specific charge is that without any authority, the

Appellant allowed 25 to 30 cattle heads to cross from the Indian side of the

border towards Bangladesh. Although an argument was advanced by the

learned counsel for the Respondent that the Appellant had permitted the

smuggling of cattle by certain persons from the Indian side to the

Bangladesh, it is clear that there was no such charge framed against the

Appellant.

11. The evidence must show that it was the Appellant who in fact allowed

LPA No.409 of 2004 page 6 of 11 the crossing of 25 to 30 cattle from the Indian side to the Bangladesh side.

Mange Ram PW-1 in his evidence states that he "noticed 25 to 30 cattle

heads going from Indian side to Bangladesh by the side of OP No.2 of

Kanchantar BOP along the Bandh." He further states that he enquired from

both the Appellant and Constable Narendra Prasad "that what duty you are

performing that the cattle heads are going from India to Bangladesh in front

of you. They failed to give any reply." There is nothing to show that this

witnesses in fact saw the Appellant allowing the cattle to cross the border

from the Indian side. Even according to him, by the time he reached the spot

the cattle were already on the Bangladesh side. Mange Ram then refers to a

conversation he had with Constable Santan Singh and Constable Ramesh

Chand who were on OP duty at BOP Alipur. The relevant portion of Mange

Ram‟s deposition reads :

"I asked from them what they had seen in the general area of OP No.2 of BOP Kanchantar. They replied that they have seen 25/30 cattle heads going from India towards Bangladesh side by the site of OP point NO.2. On enquiry they told that when they noticed the cattle heads going from India to Bangladesh, the distance will be between OP point and the cattle were approx 70 to 75 yds. They also informed that on seeing my motor cycle, the cattle smugglers who were carrying the cattle heads started beating the cattle for making them move fast. Thereafter, I went to BOP Kanchantar and endorsed an entry to this effect in BOP GD register. I also told BOP Comdr SI C.K.Muddappa to report the incident to his Coy Comdr. There after I came back to Bn HQ and submitted a detailed report of the incident in writing."

12. The statement by the Adjutant Mange Ram about cattle smugglers

LPA No.409 of 2004 page 7 of 11 appears to have been made for the first time during his examination. Clearly

this did not constitute the charge against the Appellant. Moreover, Mange

Ram‟s entire evidence appears to be based on hearsay. Even Santan Singh

and Ramesh Chand do not say, in their respective depositions, that they saw

the Appellant allowing cattle to cross from the Indian side to the Bangladesh

side. Much less, do they make any reference to any smugglers. Santan

Singh has been examined as PW-3 and Ramesh Chand as PW-4. There is

nothing in their deposition that even remotely supports the case of the

prosecution that the Appellant allowed the cattle to cross from the Indian

side to the Bangladesh side. When re-examined, Santan Singh stated as

under:

"I joined 102 Bn BSF during April 2K and posted to „C‟ Coy. On 29th July 2K I was deployed at BOP Alipur and my duty was at OP No.1 of BOP Alipur from 0600 hrs to 1800 hrs alongwith No. 90254090 Const Ramesh Chand. I have not seen any cattle heads going from India towards Bangladesh. However I have seen cattle heads about 20/25 going from Tubewell in front of OP No.2 of BOP Kanchantar towards Bangladesh side."

Likewise Ramesh Chand stated as under:

"I joined 102 Bn BSF during Jan‟95 and posted to „C‟ Coy. On 29 July 2K I was deployed at BOP Alipur from 0600 hrs to 1800 hrs alongwith Const Santan Singh. I have not seen any cattle heads going from India towards Bangladesh. I have seen about 25/30 cattle heads going from Tubewell (in front of OP No.2 of BOP Kanchantar) towards Bangladesh. These cattle heads were not grazing but going towards Bangladesh."

LPA No.409 of 2004 page 8 of 11 Even SI Mohan Singh did not support the charge against the Appellant.

When examined, he stated as under:

"When I visited the spot (i.e. Location of OP No.2 of BOP Kanchantar) in General area of BP NO. 197/MP, saw the hoof marks, cow dungs and muddy water. I have not seen any cattle heads while crossing from India to Bangladesh. However, I have seen about 20/22 cattle heads grazing in Bangladesh about800/900 mtr from IB."

13. This Court fails to appreciate how the above evidence could be held to

be sufficient, even on a preponderance of probabilities, to bring home the

charge against the Appellant.

14. There is another aspect of the matter. The Summary Security Force

Court in the instant case has given no reasons at all for its conclusion that it

finds the appellant guilty of the charge. It does not analyse the evidence.

This is contrary to the settled law as explained both by this Court as well as

the Supreme Court. In Nirmal Lakra v. Union of India 2003(1) SLJ 151

(Delhi), this Court discussed in detail the provisions of the BSF Act and

Rules and held that it was necessary for the Security Force Court to give

reasons for the decision. The Court held:

"Rule 148 reads thus:-

"148. Verdict.- The Court shall after the evidence for prosecution and defense has been heard give its opinion as to whether the accused is guilty or not guilty of the charge or charges."

LPA No.409 of 2004 page 9 of 11 In terms of Rule 148, therefore, an opinion is required to be given. Such an opinion can be given only when reasons therefore are assigned. In Summary Security Force Court, an accused is deprived of benefit of the service of a Law Officer in terms of Section 83 of the BSF Act.

Section 70 of the BSF Act provides that a Summary Security Force Court may be held by a Commandant of a unit and he alone would constitute the Court. He may, therefore, discharge several functions. Duties to assign reasons in a case of this nature would be much more. It may be that Rule 148 of the BSF Rules may have to be read with Rule 149 of the BSF Rules, but while dealing with a situation of this nature where the liberty of a person is involved, in our opinion, Rule 148 thereof must be construed liberally. Forming an opinion although is a mental act, the same, when reduced in writing, should not be expressed in one word of `Guilty‟ or `Not Guilty‟. In the Army Act and the Rules framed there under, i.e., the Army Rules, there is no provision like Rule 148 of the BSF Rules.

45. We, therefore, are of the opinion that it is highly desirable that the Court constituted under the said Act assign reasons, correctness whereof can be judged by the confirming authority as also the Court exercising the power of judicial review."

15. Learned counsel for the Respondent suggested that the standard of

proof for a Summary Security Force Court trying an offence under Section

40 of the Act need not be the same as in a criminal trial. We are afraid that

such an argument cannot be countenanced in view of the clear language of

Section 87 of the Act, in terms of which the provisions of the Evidence Act

shall apply to all trials under the Act. We have not been shown any provision

of the BSF Act which dispenses with the requirement of standard of proof LPA No.409 of 2004 page 10 of 11 applicable to criminal trials particularly when offence under Section 40 of

the BSF Act is punishable with imprisonment up to seven years. The

decisions of the Supreme Court and this Court noticed earlier also reinforce

this position in law.

16. In the circumstances, we have no hesitation in holding that the

conclusion of the Summary Security Force Court that the Appellant was

guilty of the charge was perverse and wholly unsustainable in law. We

accordingly set aside the conviction of the Appellant for the offence under

Section 40 of the BSF Act.

17. In view of the above conclusion, there is no need for this Court to

consider the submission of the Appellant as regards the illegality in the

procedure adopted by the Summary Security Force Court in awarding the

punishment or about the disproportionality of the sentence awarded.

18. The impugned order of the learned Single Judge as well as the order

of the Summary Security Force Court are hereby set aside. The appeal is

allowed. The Appellant will be reinstated in service with all consequential

benefits within a period of four weeks from today. The appeal is accordingly

allowed with costs of Rs.10,000/- which will be paid by the Respondents to

the Appellant within a period of four weeks.

S. MURALIDHAR, J.

                                                  CHIEF JUSTICE
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21 NOVEMBER, 2008
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LPA No.409 of 2004                                               page 11 of 11