Delhi High Court
Ramzan Khan vs Uoi & Ors. on 8 August, 2011
Author: Pradeep Nandrajog
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 8th August, 2011
+ W.P.(C) 1027/1998
RAMZAN KHAN ..... Petitioner
Through: Mr.K.P.Mavi, Advocate.
versus
UOI & ORS. ..... Respondents
Through: Ms.Preeti Dalal, Advocate with
Dy.Comdt.Bhupinder Sharma, BSF.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. With respect to the pleadings in the writ petition,
confronted with the record produced, learned counsel for the
petitioner says that the writ petition is not being pressed on
the pleadings constituting the writ petition as also the grounds
urged but submits that he would be arguing only on 2 points.
2. Reason why counsel has given up the pleas urged
in the writ petition is that the factual averments did not
correspond with the actual record.
3. Before dealing with the 2 points urged by learned
counsel for the petitioner, let us note the relevant facts as they
are to be found in the record produced before us.
4. Employed as a Constable and attached with a BSF
battalion, stationed for duty in Pathan Chowk Srinagar, the
petitioner was residing in a campus situated at Pathan Chowk.
5. The year was 1992. Militancy was at its peak in the
State of Jammu & Kashmir. Local sentiments were against the
members of Central Para Military Forces stationed in Jammu &
Kashmir. There were instances where jawans had misbehaved
with civilians and there were instances where civilians had
made false allegations against Force personnel. Thus,
directions were issued to all jawans that they would not leave
the lines without proper authorization. The purpose was to
keep a record of movement of all the jawans.
6. The petitioner was found missing from the BSF
campus at about 13:00 hours on 7.1.1992.
7. There was information received that he had visited
a mosque in the town, where, as per secret information
received, militants used to either hide or visit. This i.e.
petitioner visiting the mosque where militants used to either
hide or visit could not be verified and thus the offence report,
cognizance whereof was taken by the Commandant on
9.3.1992, simply listed the charge that on 7.1.1992 petitioner
left BSF campus at Pathan Chowk at 13:00 hours and that he
did not obtain necessary permission.
8. As per the requirement of Rule 42 and 43 of the
BSF Rules, the petitioner was brought before the Commandant
who read out the offence report to him and recorded that
when charged with the offence of unauthorizedly leaving the
BSF campus, Pathan Chowk at 13:00 hours on 7.1.1992,
petitioner pleaded guilty.
9. Notwithstanding petitioner having pleaded guilty,
the Commandant remanded the matter for preparation of
abstract of evidence and deputed Assistant Commandant
S.P.Tiwari to do so.
10. We have perused the relevant record and page 39
thereof pertaining to the offence report, records as aforesaid.
11. A formal charge was drawn up informing the
petitioner that he was charged for committing an act
prejudicial to good conduct and discipline of the Force, in that,
on 7.1.1992 at about 13:00 hours, he left BSF campus, Pathan
Chowk without authority.
12. Regarding the abstract of evidence, record shows
that testimony of 4 witnesses was recorded in the presence of
the petitioner, none of whom was cross-examined by the
petitioner and the petitioner refused to make any statement in
defence.
13. Submitting the abstract of evidence to the
Commandant, record shows that considering the same, on
16.7.1992, the Commandant directed petitioner's trial at a
Summary Security Force Court and remanded the matter for
consideration by the Court after 24 hours, requiring the
petitioner to be produced before the Court.
14. Record shows that when the Court assembled and
the charge was read out to the petitioner, he pleaded guilty.
15. Record produced further shows that on 20.7.1992
petitioner addressed a letter praying that a lenient view be
taken. Record shows that taking a serious view and keeping in
view the evidence led at the abstract of evidence and the fact
that the petitioner pleaded guilty, penalty of dismissal from
service was inflicted upon the petitioner.
16. We have perused the record to satisfy ourselves
that procedural requirements were complied with and we find
that they were.
17. Now, coming to the plea urged by the petitioner;
learned counsel urges that law requires admission of guilt to
be clearly recorded, meaning thereby that the record should
show that the accused understood what the charge was.
Learned counsel cites the decision reported as 1994 Cri.L.J.
375 Sashidhara Kurup vs. UOI & Ors.
18. We do not find any basis for the argument
inasmuch as the charge framed against the petitioner is clear
and specific and save and except to read the same we find no
scope for the argument that the same was required to be
conveyed in a manner to the petitioner that he could
understand the same.
19. The charge is simple. It says that on 7.1.1992 at
about 13:00 hours, without authority from the in-charge,
petitioner left BSF campus, Pathan Chowk and that the act was
prejudicial to good order and discipline of the Force.
20. Any simple person would understand what the
charge was.
21. As regards the judgment, we find the learned Judge
not being well versed with the Code of Criminal Procedure,
evidenced by the fact that in the judgment relied upon the
Commandant of the Unit conducted a trial exercising powers of
a Magistrate First Class under Code of Criminal Procedure.
22. The decision shows that the Commandant, acting
as the Court, in compliance with Section 251 of the Code of
Criminal Procedure, pertaining to a summons' case, framed
the notice pertaining to the particulars of the offence of what
the accused was charged of, but the learned Judge treated it
as if it was a case warranting framing of a charge as
contemplated by Section 211 Cr.P.C.
23. Be that as it may, said decision has no application
inasmuch as in the instant case the formal charge drawn up
conforms to Section 211 of the Code of Criminal Procedure.
24. It is then urged that the authorities appear to be
guided by the fact that the petitioner had visited a mosque
where militants used to either reside or used to visit. Counsel
states that this was not the indictment.
25. As we have noted herein above, there is no
indictment against the petitioner of having met militants in a
mosque. Record shows that there was unconfirmed
information with the department that even in the past the
petitioner had been visiting the mosque and that militants
used to either reside or visit the mosque. But, veracity thereof
could not be ascertained and this is the reason why, pertaining
to the incident dated 7.1.1992, when offence report was taken
cognizance of on 9.3.1992 in the offence report it is not
mentioned that the petitioner has committed the offence of
being in touch with militants.
26. Merely because something is suspected and
investigated, but finding no evidence wherefrom the suspicion
can be converted into a firm belief, and the matter being
dropped, would not mean that the department has been
influenced by its suspicion.
27. Before terminating our order, it may be highlighted
by us that the testimony of the 4 witnesses at the abstract of
evidence would reveal that the petitioner left the BSF campus
without authorization in defiance of the orders directing that
no Force personnel would leave the campus without
authorization. Petitioner was abducted, in all probability by
militants; the incident caused huge embarrassment to BSF
before petitioner's liberty could be secured.
28. No other point being urged and finding no merits in
the 2 contentions urged, we dismiss the writ petition but
refrain from imposing any costs.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
AUGUST 08, 2011
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