Pawan Kumar vs Director General Bsf & Anr.
2011 Latest Caselaw 4650 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision : 21st September, 2011

+                         W.P.(C) 3678/1997

        PAWAN KUMAR                        ..... Petitioner
            Through: Mr.Mukul Talwar, Advocate with
                     petitioner in person

                               versus

        DIRECTOR GENERAL BSF & ANR.          ..... Respondents
             Through: Mr.Rajinder Nischal, Advocate

        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.

1. Arguments were heard in the writ petition on 1.8.2011 when original of annexure R-1 filed along with the counter affidavit was directed to be produced in Court, for the reason it is the case of the petitioner that his signatures thereon have been forged.

2. The original has been produced in Court today and has been marked as Ex.P-1. The document is at page No.47 of file No.6/2/97-Pet/CLO(D&L)/BSF, containing the statutory petition filed by the petitioner after penalty of dismissal from service was inflicted upon him; and other related documents.

Annexure R-1, marked as Ex.P-1 in Court purports to be a letter dated 21.8.1996 under the signatures of the petitioner in which he has sought forgiveness for the wrong committed by him for which he was tried.

3. Before noting the consent of learned counsel for the parties to dispose of the petition on agreed terms, certain facts need to be noted.

4. It was alleged against the petitioner that he had used criminal force and had assaulted his senior, HC Elarus Bara at about 20:30 hours on 29.7.1996 at BOP Ashrambari.

5. Taking cognizance of the alleged offence report and after completing hearing of the charge, the Commandant directed Record of Evidence to be prepared.

6. Various witnesses were examined at the Record of Evidence. They deposed against the petitioner. The petitioner cross-examined them and in compliance with Rule 48 of the BSF Rules made a statement in defence. In brief he stated that on 29.7.1996 at about 20:15 hours he went to the Officiating Coy Commander and asked him about the status of jaggery and rice which was seized at the outpost inasmuch it was his duty to prepare and send the status report. The Officiating Coy Commander was found drinking alcohol with HC Elarus Bara. He i.e. the petitioner was abused and assaulted. He was arrested.

7. From the statement made by the petitioner it appears that the quantity seized was not entered in the register maintained at the BOP and the petitioner had wanted

to know the particulars as also the quantity of the goods seized so that he could prepare the subject status report.

8. Now, if what the petitioner says is correct it would be a serious matter and would possibly be the cause of his being falsely implicated at the behest of the Coy Commander and needless to state there would be a grave danger of subordinate officers under pressure deposing against the petitioner, which we find they did, when Record of Evidence was prepared.

9. Considering the Record of Evidence, the Commandant directed the petitioner's trial at a Summary Security Force Court. The Commandant acted as the Judge. Record shows that using a statutory proforma, the Commandant has recorded that the petitioner has pleaded guilty. On the plea of guilt, penalty of dismissal from service has been inflicted.

10. It be highlighted that the signatures of the petitioner are not to be found under the plea of guilt.

11. Petitioner denies having pleaded guilty. Petitioner asserts that his signature on Ex.P-1 are forged.

12. Respondents state that the Commandant inadvertently did not obtain petitioner's signatures under the plea of guilt but highlight that under his signatures the petitioner has admitted to his guilt and sought mercy as per Ex.P-1.

13. The said letter allegedly signed by the petitioner has been annexed as Annexure R-1 to the counter affidavit and

we highlight that a typed copy has been filed and not the photocopy of the original much less the original.

14. This was the reason we sought production of the original inasmuch as petitioner alleges that the document has been fabricated to show that petitioner pleaded guilty at the trial.

15. Learned counsel for the parties state that they have been instructed by their respective clients to make a statement that the fate of the petitioner may be decided with reference to: Whether Annexure R-1 filed along with the counter affidavit, exhibited as Ex.P-1 in Court today, bears or does not bear the signatures of the petitioner. Counsel state that let the document be sent to the Government Examiner of Questioned Documents, Railway Board Building, Shimla-III, Himachal Pradesh. The opinion sought would be: Whether signatures at the point encircled B on Ex.P-1 (the letter at page 47 of file No. 6/2/97-Pet/CLO(D&L)/BSF) are those of the petitioner and for comparison, the signatures of the petitioner at the relevant time i.e. the year 1996 which admittedly are to be found on page Nos.3, 4, 5, 6, 7, 9, 11, 12, 15 and 17, which signatures have been encircled and marked A on each page would be treated as the admitted signatures of the petitioner.

16. We would highlight that signatures of the petitioner on the pages aforenoted are to be found in the Record of Evidence which was recorded. Petitioner signed them after testimony of various persons was recorded. At that time, Sh.R.S.Bisht Deputy Commandant who recorded the Record of

Evidence as also the petitioner and the person whose statement was recorded had signed the same.

17. We are unable to mention the file number inasmuch as no number has been assigned to the file and that is why we have highlighted that these signatures are found at the end of testimony of witnesses recorded during Record of Evidence.

18. Counsel make a statement that the opinion so rendered by the Government Examiner of Questioned Documents would not be challenged by either party and would bind the petitioner and BSF. Counsel further state that if it is found that the signatures are forged, the petitioner would be reinstated in service by treating that he never pleaded guilty. The petitioner would be paid back wages and would be entitled to all consequential benefits till he is reinstated. If it is found that the signatures are those of the petitioner, it would then be treated that the petitioner pleaded guilty at the trial and hence the penalty would stand. Other points urged in the writ petition are expressly waived by the petitioner.

19. The parties are bound to the statements made by their counsel as above.

20. We direct Director General BSF to send Ex.P-1 containing the disputed signatures as also the relevant pages of the Record of Evidence which we have highlighted hereinabove containing the admitted signatures of the petitioner as also a copy of the present decision to the Government Examiner of Questioned Documents at Railway Board Building Shimla-III who is requested to furnish an opinion: Whether signatures on Ex.P-1 at point marked A are

those of the petitioner. For purposes of comparison, admitted signatures of the petitioner would be as encircled in point A at pages 3, 4, 5, 6, 7, 9, 11, 12, 15 and 17 of the Record of Evidence. Opinion be tendered within a period of 12 weeks from the receipt of the relevant exhibits by the Government Examiner of Questioned Documents.

21. Writ petition stands disposed of.

22. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE SEPTEMBER 21, 2011 mm