Ram Chander vs Uoi & Ors.
2011 Latest Caselaw 1616 Del

                      IN THE HIGH COURT OF DELHI

                           W.P.(C) No. 4860/1998

                                             Date of decision: March 22, 2011

           RAM CHANDER        .                    ... Petitioner
                    through: Mr. Shahid Azad, Mr. Kunal Rawat and
                             Ms.Meenu, Advs.

                                     VERSUS

           UOI & Ors.                            .... Respondents

through: Ms. Barkha Babbar, Adv.

                                                        AND

                           W.P.(C) No. 4959/1998


           EX.CONST. MANOJ KUMAR                    ... Petitioner

through: Mr. Shahid Azad, Mr. Kunal Rawat and Ms. Meenu, Advs.

                                     VERSUS

           UOI & Ors.                            .... Respondents
                         through: Ms. Barkha Babbar, Adv.

      CORAM:
                                     Electronically signed by:
                            Ravinder Dutt Sharma
      HON'BLE MS. JUSTICE GITA             MITTAL
                            Date : 2011-4-5 10:22


      HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

GITA MITTAL, J

1. The present petitioners were jointly tried by the Summary

Security Force Court („SSFC‟ hereafter) constituted under the

provisions of the Border Security Force Act, 1968 (hereafter referred to

as the „BSF Act‟). Identical findings of guilt and conviction were

returned and the same punishments were imposed on them which

have been separately assailed by the writ petitioners. The writ

W.P.(C) Nos.4860 & 4959/1998 page 1 of 12 petitions therefore raise identical issues of law and fact and as such

they are taken up together for hearing and adjudication.

2. Before examination of the matter on merits, we may note that

these writ petitions along with a bunch of similar writ petitions were

allowed by a judgment dated 16th January, 2006. This court had

accepted the contention of the petitioners that while disposing of their

statutory petition under Section 117(ii) of the BSF Act, no reasons were

given by the authority. The judgment dated 16th of January, 2006 had

allowed the writ petitions on this sole ground.

The respondents assailed the judgment before the Supreme

Court. Civil Appeal No. 1208/2010 before the Supreme Court was

directed to be treated as the main matter out of the bunch of appeals.

The appeals were accepted and allowed by the Supreme Court by way

of judgments dated 2nd February, 2010 and 16th February, 2010. The

matters were remanded to this court for consideration afresh.

3. So far as these petitioners are concerned, Ram Chander,

(petitioner in W.P.(C) No. 4860/1998) and Manoj Kumar, (petitioner in

W.P.(C) No. 4959/1998) were employed as Constables with the Border

Security Force. At the relevant time in the year 1997, they were

posted with the 34th Battalion of the Border Security Force which was

located at Radhabari in District Jalpaiguri, West Bengal. On 17 th

November, 1997 at 1.30 p.m. these two Constables with other

company personnel were sent to the Dronacharya Stadium, BSF,

Kadamtala, Siliguri under the command of Head Constable Bans

Narayan to witness the inauguration ceremony of the Inter Frontier

Sports Meet. While returning from the ceremony, the petitioners took

advantage of traffic congestion and disembarked from the official

W.P.(C) Nos.4860 & 4959/1998 page 2 of 12 vehicle, mingling with the local crowd. The person in command was

unable to detect the escape of the petitioners which was discovered

only at about 5.40 in the evening after the vehicle reached the

battalion headquarters. HC Bans Narayan reported the matter to the

Company Havaldar Major of the 'D' Company as well as to other

superior authorities.

4. It was subsequently revealed that these petitioners had gone to

the Village Nirmaljote which fell under the jurisdiction of PS

Phansidewa in the District Darjeeling at around dusk. Having reached

there, they had outraged the modesty of one Smt. Usha Rani after

pushing aside a girl child of eight years who was accompanying her.

Reacting to the alarm raised by this lady and the child, one Smt. Sobha

Rani W/o Sh. Ch. Ram also a residing in a house which was adjacent to

the site of the crime in the said village came out with a lantern. At

this, the petitioners are stated to have fled from the spot. In the

resultant chase by other villagers, the petitioners were overpowered

and the matter is stated to have been informed to the local police

station. The petitioners were allegedly taken to the local primary

health center for their medical examination.

5. It is on record that the petitioners made false disclosures with

regard to their identity. It was somehow learnt that the petitioners

were Border Security Force personnel. Sh. Roop Ram, Inspector In

Charge of the Border Outpost of the BSF at Phansideva was informed

who brought the petitioners to the BSF border outpost. Upon

sustained interrogation at this outpost, the petitioners revealed their

correct identities. In this background, only on 18th November, 1997

the petitioners could be brought back to the headquarters of the 34th

W.P.(C) Nos.4860 & 4959/1998 page 3 of 12 battalion of the BSF.

6. The petitioners were separately charged with the following

offence under Section 19(a) of the BSF Act :-

"BSF ACT-1968 SEC-19(A) ABSENTING HIMSELF WITHOUT LEAVE In that he, at Radhabari on 17.11.97 at 1330 hrs was sent to witness inauguration ceremoney of XXIIIrd Inter Ftr. Atheletic Meet held at Dronacharya Stadium Ftr HQ NB Kadamtala on 17.11.97 alongwith party Comdr. No. 70001474 HC Bans Naryan failed to report back in the unit line on 17.11.97 at 1740 hrs and absented himself without leave from the unit lines until 1200 hrs on 18.11.97."

7. It is noteworthy that such offence report was initiated by the

Commandant of the 34th Battalion, BSF. The petitioners were found

guilty of the offence by an order dated 22nd November, 1997 and a

punishment of 28 days rigorous imprisonment in force custody was

imposed upon him.

8. Mr. Shahid Azad, learned counsel for the petitioner has placed

before this court copy of a subsequent letter dated 26th November,

1997 addressed by the Joint Assistant Director, Operations from the

headquarters of the Siliguri Sector of the Border Security Force to the

Commandant of the 34th Battalion. The Commandant of the 34th

Battalion was thereby informed by the BSF headquarters about the

incident involving the petitioners on 17th November, 1997 in the

following terms:-

"It is learnt that on 17.11.97 at about 1930 hrs one woman namely Usha Rani Roy (28) yrs of Nirmaljote village PS Phansidewa Distt. Jalpaiguri (WB) alongwith her 7 years old daughter were coming to her house from nearly village. 3 person on civil dress later identified as BSF personnel of 34 Bn BSF caught hold of her with ulterior motive. On seeing this they (woman and daughter) shouted for help. Immediately all the

W.P.(C) Nos.4860 & 4959/1998 page 4 of 12 residents locality reached the place occurrence and managed to apprehend two of the culprits but one of them managed to escape. The local informed to PS Phansidewa and both them were taken to Phansidewa PS by police around 2030 hrs initially both of them have wrong identity and disclose their name as 87433202 Const. Deepak Kumar and 89649723 CT Manoj Kumar of 'D' Coy 151 Bn BSF. However they subsequently changed their presence and disclosed their original name as No. 89644532 CT Ram Chander and NO. 9006732 CT Manoj Kumar of 'D' Coy 34 Bn BSF. Both of the consts were subjected to medical examination at Phansidewa PHC as they were found under the influence of liquor. However, Sub sector of 108 Bn BSF on the same night and further to SI Ram Kishan of 34 Bn BSF.

2. It is further learnt that the said BSF personnel had come to Kadamtala on 17.11.97 for witnessing the BSF Interfrontier Atheletic meet. They reportedly consumed liquor at Kadamtala and boarded a civil bus proceedings toward PS Phansidewa Radhabari road junction on Kadamtala Phansidewa road. Both the constable denied to dislcose the name of 3rd BSF man."

A direction was issued to the said Commandant to inquire into

the matter and to take action against the persons who were found at

fault.

9. The petitioner has placed reliance on an undated signal

purportedly sent from the 34th Battalion to the Siliguri headquarters of

the BSF informing it that two of the BSF personnel were tried

summarily and awarded 28 days RI in force custody on 22 nd November,

1997.

10. The respondents have urged that information with regard to the

occurrence involving the petitioners was brought to the notice of the

Commandant of 34th Battalion by the letter dated 26th of November,

1997. It appears that the Commandant of the 34th battalion, BSF

thereafter passed the order dated 18th March, 1998 appointing Sanjay

Singh, a Deputy Commandant in the battalion to prepare a record of

evidence against the petitioners who were charged under Section 46 of

W.P.(C) Nos.4860 & 4959/1998 page 5 of 12 the Border Security Force Act, 1968 for committing an offence which

was punishable under Section 354 of the Indian Penal Code for

committing a civil offence on 17th November, 1997 of using criminal

force to Smt. Usha Rani W/o Sh. Biswa Nath Roy R/o Village Nirmaljote

intending to outrage her modesty at 1930 hours.

11. The chargesheet dated 30th March, 1998 issued to the petitioners

under Rule 53(ii) of the BSF Rules laid the following charge against

them :-

"BSF Act -1968 COMMITTING A CIVIL OFFENCE THAT Section -46 IS TO SAY, USING CRIMINAL FORCE TO A WOMAN WITH INTENT TO OUTRAGE HER MODESTY PUNISHABLE U/S 354 IPC.

In that they at Nirmaljote village falling under district Darjeeling on 17.11.1997 at about 1930 hrs used criminal force to Smt. Usha Rani Roy W/o Shri Biswa Nath Roy resident of Village Nirmaljote, intending to outrage her modesty."

It was also directed that the petitioners be tried by a Summary

Security Force Court („SSFC‟ thereafter). The SSFC was held against

the petitioners at the Battalion on 1st, 3rd and 4th April, 1998.

12. Eight witnesses were examined in the proceedings conducted by

the SSFC whereupon the petitioners were found guilty of the charge

levelled against them and sentenced to dismissal from service. The

petitioners were accordingly dismissed from service and struck off

from the strength of the 34th Battalion, BSF with effect from 4th April,

1998.

13. The petitioners‟ statutory petitions assailing his conviction and

sentence by the SSFC was rejected by two orders passed on 4th April,

1998 and 22nd August, 1998 respectively. The petitioners have

W.P.(C) Nos.4860 & 4959/1998 page 6 of 12 separately filed the present writ petitions assailing the aforenoticed

orders dated 4th April, 1998 and the order dated 22 nd August, 1998

respectively.

14. Before this court, challenge has been laid to the finding of guilt

returned by the SSFC vide order dated 4th April, 1998. Learned counsel

for the petitioners has challenged the conviction and sentence

imposed upon them on the sole ground that the petitioners having

been charged and convicted on 22nd November, 1997 and sentenced

to 28 days rigorous imprisonment, they could not have been subjected

to another trial. The submission is that the orders dated 4 th April, 1998

and 22nd August, 1998 are liable to be set aside and quashed on

grounds of applicability of the principles of double jeopardy. It has

been urged that the petitioners have been punished twice for the same

offence which is legally impermissible.

15. Learned counsel for the respondents has placed reliance on the

pronouncements reported at (2009) 3 SCC 57 Jitendra Panchal

Verma vs. Intelligence Officer, Narcotics Control Bureau &

Anr.; (1988) 4 SCC 655 State of Bihar vs. Murad Ali Khan &

Ors.; AIR 2003 SC 1253 State of Haryana vs. Balwant Singh to

urge that the principles of double jeopardy are not attracted or

applicable in the present case.

16. So far as the issue of double jeopardy is concerned, we find that

Section 75 of the BSF Act, 1968 prohibits a second trial of a person

subject to the statute. Section 75 of the Act deserves to be noticed

and reads as follows:-

"75. Prohibition of second trial.-(1) When any person subject to this Act has been acquitted or convicted of an offence by a Security Force Court or by a criminal court or has been dealt with under section 53 or

W.P.(C) Nos.4860 & 4959/1998 page 7 of 12 under section 55, he shall not be liable to be tried again for the same offence by a Security Force Court or dealt with under the said sections.

(2) When any person, subject to this Act, has been acquitted or convicted of an offence by a Security Force Court or has been dealt with under section 53 or section 55, he shall not be liable to be tried again by a criminal court for the same offence or on the same facts."

Sub-section (i) of Section 75 of the BSF Act, 1968 unequivocally

states that when any person subject to the act had been acquitted or

convicted of an offence of a security force court or by a criminal court

or has been dealt with under section 53 or 55, he shall not be tried

again for the same offence by a security force court or dealt with under

said sections. Under sub -section (ii) , if a person subject to the act

has been acquitted or convicted of an offence by a security force court

or has been dealt with under section 53 or 55, he shall not be liable to

be tried again by criminal court for the same offence or on the same

facts.

17. A bare perusal of the statutory provisions would show that there

is a clear distinction between the prohibitions incorporated in sub-

section (i) and sub-section (ii). So far as sub-section (i) is concerned,

the legislation has prohibitted a second trial by a Security Force Court

for the same offence for which he has been convicted or acquitted by a

security force court or criminal court. The same makes no reference to

two offences which may arise on the same facts. As against this

prohibition, sub-section (ii) of section 75 clearly states that if a person

subject to the BSF Act had been acquitted or convicted of an offence

by a security force court or has been dealt with under section 53 or 55,

he shall not be liable to be tried again by a criminal court for the same

offence or on the same facts.

W.P.(C) Nos.4860 & 4959/1998 page 8 of 12

18. In the instant case, the petitioners were tried for an offence

under section 19(a) of the BSF Act on the allegation that he was

unauthorisedly absent without leave for which he was punished on 22nd

November, 1997. The petitioners were charged by the charge sheets

dated 30th March, 1998 for commission of offences under section 46

read with section 354 of the Indian Penal Code before the Summary

Security Force Court tried the petitioners.

19. Section 354 of the Indian Penal Code relates to an offence of

assault or criminal force to woman with intent to outrage her modesty.

It cannot be contended or held that the offence under Section 19(a) of

the BSF Act with regard to his unauthorized absence for which the

petitioner was summarily tried on 22nd November, 1997, was covered

under Section 46 of the BSF Act, 1968 or Section 354 and was by no

measure the same offence.

20. We have carefully considered the submissions of the petitioners.

21. It is noteworthy that it is not the petitioners‟ contention that any

case was registered by the local police against them or that they were

arrested by the local police. There is also no material before us to

suggest that any case was registered against them by the civil police

the petitioners or that they were ever tried by any civil court. Upon

apprehension, the petitioners seem to have been simply handed over

to the BSF Company at Phansidewa.

The petitioners have relied on the communication dated 26 th

November, 1997 from the joint Assistant Director of the BSF which has

stated that the petitioners had attempted to conceal their real

identities as well as their postings.

22. Coming to the action which was taken by the respondents against

W.P.(C) Nos.4860 & 4959/1998 page 9 of 12 the petitioners is concerned, the available record would show that the

petitioners had failed to report to the unit lines as directed on 17 th

November, 1997. Therefore, so far as the 34 th Battalion was

concerned, the petitioners were unauthorisedly absent without leave

from the unit till 18th November, 1997.

23. We are therefore unable to accept the submission on behalf of

the petitioners that the authorities were aware of the petitioners‟

involvement in both the incidents when the offence report dated 22 nd

November, 1997 was prepared against the petitioners. It is an

admitted position that so far as the 34th Battalion was concerned, the

petitioner was brought back on 18th November, 1997 from the BSF

border outpost at Phansidewa from the custody of the 108 battalion of

the BSF. Ms. Barkha Babbar, learned counsel for the respondents has

explained that the charge sheet could be issued only on 30 th March,

1998 for the reason that the petitioner(s) were on leave and could be

tried only on return.

24. In this background, the trial by the summary security force court

was not a de novo inquiry for an offence for which the petitioners stood

tried or punished earlier. There is also no similarity of the acts which

were attributed to the petitioners and were the subject matter of his

trial and punishment.

The charge on which the petitioners were summarily tried on

22nd November, 1997 was for an offence under Section 19(a) of the

BSF Act relating to their unauthorized absent without leave and not for

the serious offence which the petitioners were alleged to have

committed in the evening of 17th November, 1997. The bundle of facts

and incidents which form the subject matter of the charges are also

W.P.(C) Nos.4860 & 4959/1998 page 10 of 12 not the same.

25. The entire record laid before us has been scrutinized.

Information with regard to the incident in the evening of 17 th

November, 1997 was revealed subsequent to the summary trial of the

petitioners on 22nd November, 1997 upon receipt of the letter dated

26th of November, 1997. Therefore, the response in this signal was

clearly incorrect. We find that the reliance on behalf of the

petitioners on the undated signal sent from the Battalion is

misconceived. This contention of the respondents is also borne out

from the statement of SI Ram Kishan. who was examined as PW-8 who

stated that on 18th November, 1997, he was asked to collect two

jawans from 108 Battalion, BSF at Phansidewa as they were kept there.

He had submitted that he had gone to the Border Out Post Phansidewa

of 108 Battalion, BSF and on 18 th November, 1997 brought the

petitioners back to the Battalion headquarters.

26. The trials of the petitioners pursuant to the charge sheet dated

30th March, 1998 and the orders dated 4th April, 1998 convicting and

sentencing the petitioners were not prohibited in law on grounds of

double jeopardy. The same were clearly permissible even by virtue of

section 75 of the Border Security Force Act, 1968.

27. The challenges to the orders dated 22nd of August, 1998

dismissing the appeals on the same grounds, therefore, are also

devoid of legal merits and is hereby rejected.

28. The petitioners who were assigned the task of protection of lives,

unauthorisedly left the battalion and have been found guilty of

extremely grave and heinous charges of outraging the modesty of a

woman in the village in an inebriated condition.

W.P.(C) Nos.4860 & 4959/1998 page 11 of 12 In this background, the sentence imposed upon the petitioners

also requires no reconsideration on grounds of proportionality.

For all these reasons, the writ petitions are held to be without

merit and are hereby dismissed.

                                           GITA MITTAL,J



                                           J.R. MIDHA, J
March 22, 2011
kr




W.P.(C) Nos.4860 & 4959/1998                       page 12 of 12