H.D.Chakraborty vs Uoi & Ors.
2011 Latest Caselaw 1591 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: 8th March, 2011
                         Judgment Delivered on:21st March, 2011

+                       W.P.(C) 4904/1994

        H.D.CHAKRABORTY                       ..... Petitioner
                 Through:     Ms.Tamali Wad, Advocate

                              Versus

        UOI & ORS.                           .....Respondents
                  Through:    Mr.Neeraj Chaudhari, CGSC with
                              Mr.Khalid Arshad and Mr.Mohit
                              Auluck,      Advocates        and
                              Mr.Bhupinder Sharma, Law Officer,
                              BSF

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     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.

1. In the year 1992 the petitioner was employed as a Deputy Commandant with BSF and was attached with the 8th Bn. which was stationed for duties in Kashmir Valley. BSF officials conducted a search operation on 8.4.1992 and apprehended 2 Pakistan trained militants. The local people raised an issue on the said two persons being apprehended. A written complaint was received on 25.5.1992 against the petitioner alleging that he had demanded illegal gratification in

sum of `20,000/- from the complainants Jabar Khan and Mohd.Ali Ganai to release the 2 persons who were detained. As per the department the Commandant of the 8 th Bn. made discreet inquiry pertaining to the complaint and found substance therein. Since by then the petitioner stood attached to the 67th Bn. the complaint along with the discreet inquiry report was sent to the Commandant of the said battalion for necessary action.

2. As claimed by the department the Commandant complied with Rule 44 of the BSF Rules 1969 and reduced in writing the allegation as set out in Appendix VI i.e. framed the charge dated 27.8.1992, which reads as under:-

"CHARGE SHEET

IRLA No.2829 Rank Dy.Commandant name Sh.H.D. Chakraborty of 67 BN BSF is charged with:-

BSF ACT SEC 46 Committing a civil offence, that is to say, being public servant, accepting from any person, for himself, any gratification whatever, other than legal remuneration as a motive for showing in exercise of his official functions, favour to any person, punishable under Section 7 of the Prevention of Corruption Act 1988.

In that he, on 7th May, 1992, while posted at Damal Hanzipur as E-Coy Comdr. 08 BN BSF, accepted Rs.20,000/- as an illegal gratification from Mohd.Jabar Khan for release of their relatives namely Gulam Hasan Lone & Mohd.Akram Lone from the Custody of BSF."

3. As per the department the Commandant, in compliance with Rule 45B of the BSF Rules 1969, conducted proceedings pertaining to hearing of the charge and finding a case made out to prepare a Record of Evidence detailed Mohinder Lal, Deputy Commandant of the 67th Bn. BSF as the Recording Officer to prepare the Record of Evidence.

4. At the Record of Evidence, statements of 13 persons were recorded on behalf of the department and of 2 persons in defence. Relevant would it be to note that 10 out of 13 persons examined by the department talked of the petitioner either demanding or receiving illegal gratification in sum of `20,000/- from Jabar Khan and Mohd.Ali Ganai and notwithstanding the Record of Evidence proceedings relating to only the charge of accepting illegal gratification in sum of `20,000/-, Sh.Mohinder Lal permitted 3 persons to depose facts beyond the charge and we note that Gulam Mohidin Sheikh PW-6 stated that as a token of his love and friendship towards the petitioner he had gifted a „Feron‟ (Kashmiri Apparel) to the petitioner, Manzoor Ahmad PW-8 stated that as a token of his love and friendship towards the petitioner he had gifted a „Loi‟ (Kashmiri Shawl) to the petitioner and Gulam Hassan Bhat PW-9 stated that as a token of his love and friendship towards the petitioner he had gifted a „Karkuli‟ (Kashmiri Cap) to the petitioner.

5. Considering the Record of Evidence, on 24.5.1993, the Commandant framed 3 additional charges and drew out a charge sheet consisting of 4 charges as under:-

"CHARGE SHEET

The accused IRLA No.2829 Shri H.D.Chakraborty, Dy.Commandant 67 Bn. BSF is charged with.

Ist Charge BSF ACT Sec 46 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, BEING A PUBLIC SERVANT, ACCEPTING GRATIFICATION, OTHER THAN LEGAL REMUNERATION, FOR SHOWING, IN THE EXERCISE OF HIS OFFICIAL FUNCTIONS, FAVOUR TO ANY PERSON, PUNISHABLE U/S 161 RBC (RPC)

In that he, at TAC HQ 08 Bn. BSF Qaziguad, on 07 May 1992, while performing the duties of Adjutant in 08 Bn BSF, accepted a sum of Rs.20,000/- (Rupees twenty thousand) only, from Mohd.Jabar Khan S/o Gulam Ahmad Khan, for himself, a gratification other than legal remuneration, as a motive for showing, in the exercise of his official functions, favour to any person, to wit, release of two detenues namely Gulam Hassan Lone and Mohd.Akram Lone of Vill Salam Kain Naugam from the BSF custody.

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

In that he, at BSF Camp Khur Batpora, during December 1991, while being the Officer Incharge at the said BSF Camp, improperly accepted one „LOI‟ (Woollen Shawl) from Shri Manzoor

Ahmad S/o Mohd.Sikander Malik of Vill Khur Batpora.

3rd Charge BSF ACT Sec 40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE.

In that he, At BSF Camp Khur Batpora, during January 1992, while being the Officer Incharge at the said BSF Camp, improperly accepted one „Feron‟ from Shri Gulam Mohi-ud-din Sheikh S/O Abdul Sheikh of village Khur Batpora.

4th Charge BSF Act Sec 40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

In that he, at BSF Camp Khur Batpora, during 1991-92, while being the Officer Incharge at the said BSF Camp, improperly accepted one „Karakuli Cap‟ from Shri Gulam Hassan Bhatt S/O Gulam Rasool Bhatt of Vill Khur Batpora."

6. On Nil.6.1993 the Inspector General BSF Kashmir Frontier Range i.e. the range under whose administrative control petitioner‟s battalion was stationed directed petitioner‟s trial by a General Security Force Court in respect of the four charges, i.e. ordered a General Security Force Court to be convened.

7. When the Court convened on 19.8.1993, the petitioner raised a preliminary objection pertaining to the lack of

jurisdiction of the Court alleging that no hearing was conducted pertaining to the hearing of the charge as envisaged by Rule 45B of the BSF Rules 1969. He alleged that nothing was read out to him pertaining to the sole charge which was framed then. He alleged no hearing of the charge qua charge No.2, 3 and 4. This necessitated the examination of the Commandant Sh.D.Kaushal who appeared as Court Witness No.1.

8. Sh.D.Kaushal deposed that on 21.8.1992 he received a signal requiring him to collect a file pertaining to the petitioner and he did the needful. The file contained a discreet inquiry conducted by Sh.G.S.Bhomia Commandant 8th Bn. BSF pertaining to some allegation levelled by civilians against the petitioner while petitioner was posted with 8th Bn. BSF and some documents including a complaint of one Jabar Khan. He called the petitioner on 27.8.1992 and conducted the hearing as contemplated by Rule 45B and at the hearing read over the discreet inquiry report as also the complaint made by Mohd.Jabar Khan. He clarified that he did not examine any witnesses and that he filled up the requisite performa in which he made the endorsement of having framed the charge sheet and read over the charge to the petitioner and decided to order Record of Evidence to be prepared.

9. The witness produced for perusal of the Court the necessary certificate which was marked Ex.‟N‟ and it was observed by the Court that Annexures I and II mentioned in the certificate Ex.‟N‟ were not attached. It was noted by the Court that as per the certificate, Annexure II was the stated

statement made by the petitioner during hearing of the charge proceedings. When confronted with the deficiencies by the Court, the witness stated that the fact was that when given an opportunity to make a statement, the petitioner had made none and that he i.e. the witness had inadvertently failed to record in the certificate that the petitioner had declined to make a statement as also that he inadvertently did not score off the inapplicable portions of the statutory performa to be filled up by him while recording the reading of the charge. He deposed that after the Record of Evidence was completed and he submitted the same to the Frontier Headquarters, the file was returned to him with the observation that the nature of documents examined at the time of hearing the charge was not specified in the certificate and therefore he had prepared a fresh certificate which he tendered as Ex.‟O‟. It was noted by the Court that Ex.‟O‟ bore the date 27.8.1992 and thus called upon the Court witness to explain, to which he stated that though he drew up the certificate Ex.‟O‟ much later, but since it was issued on the basis of the hearing done on 27.8.1992, he ante-dated the same by recording the date 27.8.1992.

10. As noted above the petitioner had raised another issue before the Court, of Rule 45B being not complied with i.e. no hearing of the charge being conducted pertaining to charge 2, 3 and 4. To put it pithily, the petitioner raised an issue pertaining to no hearing of the charge being conducted properly pertaining to charge No.1 and no proceeding whatsoever being conducted pertaining to charge No.2, 3 and

4.

11. It is but obvious that whereas there may be a dispute as to what happened on 27.8.1992 pertaining to charge No.1, it was obvious that pertaining to charge No.2, 3 and 4, no hearing of charge whatsoever took place inasmuch as these charges were obviously framed after the Record of Evidence proceedings were over and the material pertaining to said 3 charges surfaced for the first time during Record of Evidence proceedings and as per Court Witness No.1 he never deposed of conducting any hearing of the charge pertaining to the said 3 charges.

12. The Court pronounced decision against the petitioner qua the first objection raised by him and accepted the version of the Court witness of not properly drawing up the proceedings on 27.8.1992 but found prima facie merit in the second submission. The Court passed an order that it was adjourning further proceedings and reported the matter to the Convening Officer i.e. the Inspector General, Kashmir Frontier, obviously with the intent that the Convening Authority would look into the matter.

13. The Convening Officer, vide order dated 24.9.1993, taken on record when the Court re-assembled as Ex.„R‟, missed the point in issue on which the Court had deferred further consideration, evidenced by the fact that the Convening Authority recorded that pertaining to the sole charge on which the hearing of the charge was held was not found to be with any taint and ignoring that pertaining to the other 3 charges, no hearing of the charge was held, opined that it was always available for the Competent Authority i.e. the Convening

Authority to re-frame the charge sheet, a power which we find vested under Rule 59(2)(b) of the BSF Rules 1969.

14. It be highlighted that re-framing of a charge is an issue entirely different than framing additional charges. We may explain. Hearing of a charge pertains to an allegation made by „A‟ that an officer extorted money under threat of false implication by threatening that he would ensure by manipulating record that „A‟ has sold sub-standard goods to the Unit. During Record of Evidence the evidence is recorded and which shows that „A‟ extorted money by delaying settlement of the bill. This would be an instance where a charge can be re-framed. It is a situation akin to a major or a minor offence with which Courts are familiar with respect to criminal trials, though strictly not the same. Re-framing of a charge would be, where the core remains the same but in view of the variation from where the journey commences and till it ends, the exact contours of the stated offence require a different boundary to be drawn.

15. Be that as it may, the Court was helpless and thus proceeded to commence the trial and record the testimony of the witnesses of the prosecution.

16. We eschew even recording a brief summary of the testimony of Assistant Commandant Hemant Kumar PW-1, Commandant G.S.Bhomia PW-2, Mohd.Jabar Khan PW-3, Bashir Ahmad Padder PW-4, Gulam Ahmed Lone PW-5, Mohd.Yakub Khan PW-6, Gulam Mohd.Sheikh PW-7, Ali Mohd.Gahai PW-10 and Const.Shyam Sunder Negi PW-12 for the reason the testimony of these witnesses relate to the first charge i.e. the

charge of petitioner demanding and accepting illegal gratification in sum of `20,000/- from Mohd.Jabar Khan for release of two detenues i.e. Gulam Hassan Lone and Mohd.Akram Lone. The reason we are not so recording is the fact that at the end of the trial, petitioner was declared not guilty of Charge No.1. The reason for the verdict is the mutually contradictory and conflicting versions stated by the witnesses during evidence pertaining to the manner in which the illegal gratification amount was settled; the manner in which the amount was raised and the manner in which it was paid. The versions were so mutually contradictory and conflicting that none could be reconciled.

17. We have noted hereinabove that during Record of Evidence proceedings, Gulam Mohidin Sheikh PW-6, Manzoor Ahmad PW-8 and Gulam Hassan Bhat PW-9 had stated that they had, as a token of their love and affection towards the petitioner, gifted a Feron, Loi and Karkuli respectively to the petitioner. At the trial Gulam Mohidin Sheikh appeared as PW-

9. Manzoor Ahmad appeared as PW-8 and Gulam Hassan Bhat appeared as PW-11. Whereas Gulam Mohidin Sheikh and Gulam Hassan Bhat deposed once again that as a token of their love and affection and friendship they had gifted a Feron and Karkuli respectively to the petitioner, Manzoor Ahmad, who during Record of Evidence stated that he had gifted a Loi to the petitioner as a token of his love and affection, changed his version during trial and said that the petitioner had demanded a Loi from him as a consideration to release a

relative of his from BSF custody and therefore he gave the Loi to the petitioner.

18. Relevant would it be to note that in his testimony Manzoor Ahmad gave no name of his relative who was arrested by BSF officers and was released. When cross- examined with respect to what he had stated during Record of Evidence, he said that he does not know as to how his statement was not recorded correctly during Record of Evidence. We may only highlight that a statement recorded during Record of Evidence has been signed by him and it stands recorded therein that the statement has been read over by him. We note that the statement is recorded in English and Manzoor Ahmad has signed the same in English. Name of two independent witnesses in whose presence the statement was recorded, with their signatures exists beneath the statement and one of them is Gulzar Ganai Sheikh who has also signed in English. The other witness is L/Nk. B.G.Jonawane.

19. We may note that Gulam Hassan Bhat accepted that when he gifted the cap to the petitioner he i.e. the petitioner offered to pay the price, but since it was a gift out of love and affection, he has refused to accept the money.

20. We need not note the defence evidence led at the trial inasmuch as it relates to charge No.1, of which the petitioner has been absorbed.

21. The Court returned a verdict of not guilty qua charge No.1 and a verdict of guilt pertaining to charge No.2, 3 and 4.

22. The sentence imposed upon the petitioner vide order dated 10.10.1993 was of „severe reprimand and reduction of

seniority by 3 years‟ i.e. by directing that the rank and precedent of promotion of the petitioner to the rank of Deputy Commandant shall bear the date 14.9.1990; it be noted that the petitioner had been promoted as a Deputy Commandant on 14.9.1987.

23. Against the verdict of guilt pertaining to 3 charges and the sentence imposed, petitioner preferred a statutory petition on 1.1.1994 which was rejected vide order dated 12.8.1994.

24. We note that the petitioner had raised the issues pertaining to no hearing of charge being conducted on 27.8.1992 as required by law pertaining to charge No.1, which plea we find became useless in view of the petitioner being acquitted of the said charge. Pertaining to charge No.2, 3 and 4, petitioner raised the same plea which he has raised before the Court and in respect whereof the Court remitted the matter before the Convening Authority for a reconsideration, which was declined. Since we have noted the issue raised in para 10 above, for sake of brevity we need not re-pen the same. Qua the verdict of guilt on charge No.2, 3 and 4, petitioner additionally raised the issue that pertaining to charge No.3 and 4 there was no evidence of his having improperly accepted the Feron and the Karkuli and highlighted that the testimony of Gulam Mohidin Sheikh and Gulam Hassan Bhat clearly brought out that the two had gifted the Feron and Karkuli respectively to him out of love and affection. Qua the Loi, petitioner highlighted that Manzoor Ahmad had changed his version vis-a-vis what he stated during Record of Evidence and at the trial.

25. We note that the order rejecting the statutory petition filed by the petitioner is a non-speaking order and simply records that the authority concerned found no merit in the statutory petition and hence was pleased to reject the same.

26. It would be apparent to a reader of our decision as to what are the points which would have been argued before us during arguments in the writ petition. Obviously, the first argument was that pertaining to charge No.2, 3 and 4 for which the petitioner faced a trial before the General Security Force Court, no hearing of the charge was held as contemplated by Rule 45B of the BSF Rules 1969. The second submission was that pertaining to charge No.3 and 4, there was no evidence to sustain the verdict of guilt and pertaining to charge No.2, the evidence of the sole witness Manzoor Ahmad was so highly tainted that even within the confines of evaluation of evidence at a domestic trial, the same merited a rejection.

27. Let us note Rule 45B of the BSF Rules 1969. The same reads as under:-

"45B. Hearing of charge against an officer and a subordinate officer.-

(1)(a) The charge against an officer or subordinate officer shall be heard by his Commandant:

Provided that charge against a Commandant, a Deputy Inspector-General or an Inspector-General may be heard either by an officer commanding a Unit or Headquarters to which the accused may be posted or attached or by his Deputy Inspector-General,

or his Inspector-General or, as the case may be, the Director-General.

(b) The charge sheet and statement of witnesses if recorded and relevant documents, if any, shall be read over to the accused if he has not absconded or deserted:

Provided that where written statement of witnesses, are not available the officer hearing the charge shall hear as many witnesses as he may consider essential to enable him to know about the case.

(c) The accused if he has not absconded or deserted, shall be given an opportunity to make a statement in his defence.

(2) After hearing the charge under sub-rule (1), the officer who heard the charge may -

(i) dismiss the charge; or

(ii) remand the accused, for preparation of a record of evidence or preparation of abstract of evidence against the accused:

Provided that he shall dismiss the charge if in his opinion the charge is not proved or may dismiss it if he considers that because of the previous character of the accused and the nature of the charge against him, it is not advisable to proceed further with it:

Provided further that in case of all offences punishable with death, a record of evidence shall be prepared:

Provided also that in case of offence under sections 14, 15, 17, 18 and offence of „murder‟ punishable under section 46 of the Act, if the accused has absconded or deserted, the Commandant shall hear the

charge in his absence and remand the case for preparation of record of evidence."

28. Law requires penal provisions, be they substantive or procedural, to be construed strictly and as regards procedural, to be complied with in letter and in spirit. Rule 45B has a salutary purport and is a procedural safeguard for an accused and dealing with the hearing of a charge is a provision enabling an accused to convince the Commandant to summarily dismiss the indictment. This is evident from a reading of sub-rule 2 of Rule 45B which states that after hearing the charge as per sub-rule 1, the officer hearing the charge may dismiss the charge or remand the accused for preparation of a record of evidence. As per clause-C of sub-

rule 1 of Rule 45B, the accused has an opportunity to make a statement of his defence at the hearing of the charge.

29. Facts noted by us herein above bring out that pertaining to charge 2, 3 and 4 no hearing of the charge was held for the obvious reason at the stage of hearing of the charge on 27.8.1992 it was only one charge which was drawn up and as highlighted by us in para 14 above, power vested under Rule 59(2)(b) of the BSF Rules 1969 to reframe a charge would not be enough power or the source of a power to frame additional charges unrelated to the original charge. It is thus apparent that when statements were permitted to be recorded during record of evidence pertaining to the gifting of a Loi, Feron and a Karkuli, which were beyond the scope of the record of evidence, which perforce had to be restricted to the charge of having demanded and received illegal gratification in sum of `20,000/- to release Gulam Hasan Lone and

Mohd.Akram Lone, if additional charges had to be framed, hearing of the charge proceedings envisaged as per Rule 45B had to be conducted. Indeed, the General Security Force Court found merit in the said plea when raised as a plea of jurisdictional bar and vide order dated 19.8.1993 adjourned the proceedings and reported the matter to the Convening Officer, obviously with the intention that hearing of the charge proceedings would be conducted as per Rule 45B pertaining to charge 2, 3 and 4.

30. A vital right of the petitioner to convince the Commandant that said charges could not be framed not only on account of the officer who conducted the record of evidence proceedings permitted statements to be recorded beyond his mandate but additionally for the reason Gulam Mohidin Sheikh, Manzoor Ahmed and Gulam Hasan Bhat, who stated that they gifted a Feron, Loi and Karkuli respectively did so as a token of their love and friendship towards the petitioner.

31. It is apparent that 2 wrongs have been committed against the petitioner. The first is by Deputy Commandant Mohinder Lal who recorded evidence beyond the scope of the charge for which record of evidence had to be prepared and secondly when Rule 45B was not followed pertaining to the 3 additional charges being charge No.2, 3 and 4.

32. Pertaining to the second plea urged, it assumes importance to note that the entire writ petition has been drafted and so was the statutory petition drafted, and indeed arguments were advanced, as if the 3 charges pertain to

demanding and receiving bribe. The charges were of improper acceptance of a Loi, Feron and Karkuli. The two are different and distinct.

33. We concur with the plea urged by learned counsel for the petitioner that pertaining to the Feron and the Karkuli being accepted as gifts by the petitioner there is no evidence to establish that he demanded the same. On the contrary the evidence is that Gulam Mohiddin Sheikh gifted a Feron and Gulam Hasan Bhat gifted a Karkuli to the petitioner as a token of their friendship towards the petitioner. Qua the petitioner receiving a Loi from Manzoor Ahmed, we agree with her submission that Manzoor Ahmed has under pressure of the local community falsely deposed at the trial that the petitioner demanded the Loi in return of release of his relative, a fact not so stated during record of evidence. More so, in view of the admission made by Ct.Shyam Sunder Negi PW-12 that before he came to the Court to depose, the prosecutor had tried to influence him. We thus concur with the submission that as per the evidence on record it is apparent that the petitioner accepted a Loi from Manzoor Ahmed when the same was offered to him as a token of friendship.

34. But the issue would be, ought the petitioner to have received a Loi, a Feron and a Karkuli as gifts. As per Manzoor Ahmed the Loi costed between `500 - 700. As per Gulam Hasan Bhat the Karkuli cap costed `80 and as per Gulam Mohiddin Sheikh the Feron costed between `150 - 200. Taking the upper value of the 3 items would be `700 + `80 + `200=

`980. The year when the gifts were received was December 1991 and January 1992.

35. With passage of time, memory fades, but we certainly recollect the prices of apparels in the year 1991 and 1992 and do remember buying a good quality sweater or a coat for a price ranging between `2000 to `4000. Thus, the value of the gifts received is fairly petty.

36. As a Deputy Commandant of a BSF Unit in an insurgency ridden State, we certainly expect the petitioner to have tried to create a network of sources in the State to receive information of movement of outsiders in the area within his jurisdiction and this perforce would require him to make friends with a few local people and earn their confidence; we do earn each other‟s confidence by exchanging gifts. As long as the value of the gift does not render a gift ostentatious, we see no impropriety in the petitioner accepting a Loi, a Feron and a Karkuli from 3 persons value whereof, even on the highest side was not more than `980 (total).

37. Disposing of the writ petition we absolve the petitioner of the charges framed against him and quash the verdict of guilt declaring petitioner guilty of charge No.2, 3 and 4 and set aside the sentence dated 10.10.1993. We also set aside the order dated 12.8.1994 rejecting the Statutory Petition filed by the petitioner and allow the Statutory Petition.

38. Noting that as a result of the penalty imposed, petitioner could not earn promotions, we direct Review DPC to be held and consider petitioner‟s candidature for promotion by considering the ACRs of the petitioner as of the date when DPC

met and in which persons junior to the petitioner were promoted. The petitioner would be entitled to all consequential benefits, if held entitled to be promoted, except back-wages. Noting that the petitioner has since retired, we clarify that his pension would be fixed accordingly with reference to the higher post and would be paid as per scale of pay applicable with effect from the date pension became payable.

39. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE MARCH 21, 2011 mm/dk