Delhi High Court
Anil Kumar vs Uoi & Ors on 6 August, 2012
Author: Pradeep Nandrajog
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : July 16, 2012
Judgment Pronounced on: August 06, 2012
+ WP(C)2681/2000
ANIL KUMAR ..... Petitioner
Represented by: Mr. Anil Gautam, Advocate.
versus
UOI & ORS ....Respondents
Represented by: Ms.Barkha Babbar, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J.
1. Having joined BSF as a Constable in the year 1988,
the petitioner was attached to the 69th Bn. of BSF as on January
27, 1999, and was a part of „C‟ Company of the battalion, which
was posted at Border Out Post (BOP) Noorpur.
2. It is the case of the petitioner, and for which
assertion made by the petitioner, he admittedly gave proof to
the superior authorities that he had swelling in his testicles due
to which he was in pain. It is the case of the petitioner that his
medical problem was known to the Coy Commander Subedar
S.Chatterjee, who had assured him that he would give light
duties to the petitioner. It is the further case of the petitioner
that he learnt that the Coy Commander Subedar S.Chatterjee,
HC Gurkmukh Singh and L/Nk. Mithiliesh Kumar were engaged in
or were facilitating smuggling activities and even they learnt
about the petitioner having said knowledge and thus extended
threats to the petitioner to falsely implicate him; and despite the
assurance of being assigned light duties by the Coy
Commander, the petitioner was assigned strenuous duties.
3. It is not in dispute that on January 27, 1999, the
petitioner was assigned duty as a sentry at the armoury (Kote)
from 20:45 hours to 23:30 hours and admittedly he abandoned
the place at around 20:50 hours, and taking along with him the
Self Loading Rifle and ammunition, exited the Border Out Post,
and this departure was noted by Ct.S.Mohan, on sentry duty at
the main gate, who immediately informed the next superior
officer i.e. L/Nk.Mithiliesh Kumar that petitioner had walked out
of the Border Out Post with his arms and ammunition. At the
same moment, the Coy Commander Subedar S.Chatterjee
chanced to come out of his room and noted none being on duty
at the Kote. L/Nk.Mithiliesh Kumar informed him of petitioner
having walked out of the Border Out Post. A search party
comprising HC Gurmukh Singh and L/Nk.Mithilesh Kumar was
sent to track the petitioner and bring him back, and indeed the
situation so warranted, inasmuch as the petitioner was carrying
arms and ammunition.
4. Admittedly, L/Nk.Mithilesh Kumar and HC Gurmukh
Singh were able to find the petitioner near a video hall. They
brought him back.
5. At this stage of the events which transpired late night
on January 27, 1999, the petitioner and the respondents parted
company; each giving a different version.
6. Whereas L/Nk.Mithilesh Kumar and HC Gurmukh
Singh claim that they found the petitioner drunk, and when they
asked him : Why had he abandoned the duty and what was he
doing in the market? And claim that the petitioner replied : What
duty? Who is the Coy Commander to detail my duty? And further
on the way back i.e. when the two were bringing him back to the
Border Out Post he hurled verbal abuses at them; and further
when brought to the Border Out Post, and finding the petitioner
drunk and abusive, he had to be immediately disarmed and as
HC Gurmukh Singh went to disarm the petitioner, the petitioner
attempted to hit HC Gurmukh Singh with the butt of his rifle. HC
Gurmukh Singh blocked the blow. L/Nk.Mithilesh Kumar and the
Coy Commander had to intervene to disarm the petitioner, who
was then taken to the barracks and on the way, being
intoxicated and hence unstable, fell on the bricks lying nearby.
The petitioner denies being drunk or having verbally abused
either/or L/Nk.Mithilesh Kumar and HC Gurmukh Singh. As per
the petitioner, he was consulting a local doctor for his medical
ailment i.e. swelling in the testicle, and since, when he was on
sentry duty at the Kote, the pain became unbearable he left the
duty place to visit the doctor concerned so as to be
administered medicine which would give him immediate relief.
According to the petitioner, as he reached the house of the
doctor, he learnt that the doctor was not available and thus he
returned to the Border Out Post, and when he was passing by
the video hall, L/Nk.Mithilesh Kumar and HC Gurmukh Singh met
him. According to the petitioner, these two gentlemen abused
him and when they returned to the Coy Headquarter, HC
Gurmukh Singh punched him in the presence of the Coy
Commander Subedar S.Chatterjee. Petitioner claims that HC
Gurmukh Singh pushed him on to a pile of bricks, and he
became unconscious.
7. Now, the prosecution claims that the petitioner was
drunk, which fact petitioner denies. Both are not at variance
that petitioner received injuries as a consequence of falling on
bricks; but at a variance as to the cause of the petitioner falling
on the bricks. The petitioner alleges being pushed; the
prosecution claims the petitioner being unstable due to being
drunk and hence falling on the bricks.
8. We would have expected some evidence of the
medical treatment accorded to the petitioner the same night,
i.e. the night of January 27, 1999. We would have expected to
have some evidence of petitioner being medically examined
pertaining to his alleged state of intoxication. But there is no
evidence before us; neither annexed with the counter-affidavit,
nor a part of the Record of Evidence which was prepared and
much less part of the Summary Security Force Court Trial
against the petitioner.
9. With a gap of what happened over the next three
days, parties are again not at variance that on January 30, 1999,
the petitioner was first admitted at the MI Room and his
condition warranted In Patient treatment at a proper hospital.
Accordingly parties are not at variance that the petitioner was
shifted to SD Hospital, Lal Bagh, Murshidabad where he
remained admitted as an In Patient till February 05, 1999. A
discharge certificate to said effect i.e. petitioner remaining
admitted at the SD Hospital, Lal Bagh, Murshidabad from
January 30, 1999 to February 05, 1999 exists in the official
records, but we find that the same does not constitute a record
of a Summary Security Force Court Trial conducted against the
petitioner.
10. As per the record, the offence report (contemplated
by Rule 43 of the BSF Rules 1969) pertaining to the incident of
January 27, 1999, was placed before S.S.Multani, the
Commandant of the 69th Bn. who took cognizance thereof on
February 02, 1999. The record reveals that the petitioner was
produced before the Commandant who read out the offence
report which brings out three charges against the petitioner;
firstly, the petitioner was drunk while on duty, secondly the
petitioner was found absent from duty, and lastly the petitioner
assaulted HC Gurmukh Singh. It records that the petitioner
pleaded guilty. The record reveals that on the same day i.e.
February 02, 1999, the Commandant directed Record of
Evidence to be prepared by Asstt.Comdt.K.Umesh. The record
produced by the respondents would evidence that
Asstt.Comdt.K.Umesh commenced and completed the Record of
Evidence proceedings on one day i.e. February 12, 1999. He
recorded the statements of Subedar S.Chatterjee, HC Gurmukh
Singh, L/Nk.Mithilesh Kumar and Ct.S.Mohan, and suffice would
it be for us to note that the four witnesses deposed against the
petitioner and as per the version of the prosecution.
11. The Record of Evidence proceedings would show that
the petitioner was present. His signatures have been obtained
on each page of the testimony of the witnesses. The petitioner
has cross-examined the four witnesses and has also made a
statement in defence. The record consisting of 12 pages has
been signed by the petitioner on each page. The place where
the testimony of a witness ends is the place where the witness
has penned his signatures and just adjacent thereto i.e. on the
left side of the page, the petitioner has signed. For example,
the testimony of PW-1 consists of one full sheet and five lines on
sheet No.2. The paper sheets have a dimension of length 13
inches and breadth 8 inches. Thus, on sheet No.2, the
signatures of the petitioner are 3 inches from the top.
Thereafter the cross-examination of the witness is recorded,
which continues till the third sheet and ends in the middle
thereof. The witness has signed and opposite thereto the
petitioner. Somewhat similar is the position qua other witnesses
as well.
12. The record reveals that the Record of Evidence
proceedings were placed before the Commandant who decided
that a trial was warranted and accordingly on February 16, 1999
drew up a charge-sheet alleging as under:-
"The Accused No.88254247 Constable Anil Kumar
of 69 Battalion BSF is charged with:-
FIRST CHARGE ASSAULTING HIS
BSF ACT SUPERIOR OFFICER
SEC 20(a)
in that he,
at BOP Chandni Chak, on
27.01.1999, hit No.67500298
HC Gurmukh Singh of his coy
with butt of his Self Loading
Rifle.
SECOND CHARGE LEAVING HIS GUARD
BSF ACT WITHOUT ORDERS FROM HIS
SEC 16(d) SUPERIOR OFFICER
in that he,
at BOP Chandni Chak, on
27.01.1999, while on sentry
duty from 2045 hours to 2330
hours, left the BOP at about
2050 hours without orders
from his superior officer.
THIRD CHARGE AN OMISSION PREFUDICIAL TO
BSF ACT THE GOOD ORDER AND
SEC 40 DISCIPLINE OF THE FORCE
in that he,
at BOP Chandni Chak, on
27.01.1999, while on sentry
duty from 2045 hours to 2330
hours, consumed country
liquor."
13. The record reveals that after serving the charge-
sheet afore-noted upon the petitioner on February 16, 1999, the
trial commenced on February 18, 1999. The charges were read.
The petitioner pleaded „Guilty‟ to the three charges and
thereafter the Commandant; ostensibly complying with Rule
142(2) of the BSF Rules 1969, recorded a satisfaction that the
petitioner understands the nature of the charge and the
consequence of his pleading guilty. Thereafter the Record of
Evidence was read. The petitioner thereafter sought pardon,
saying this was the first mistake. Proceedings closed at 11:05
hours, followed by a verdict of guilt being returned and penalty
of dismissal from service inflicted.
14. With respect to the record, petitioner pleads that
everything is a hogwash. He pleads contrivance and false
preparation of the record. The petitioner brings home the point
that admittedly on February 02, 1999 he was admitted, as an In
Patient, at S.D.Hospital Lal Bagh, Murshidabad; where he was
admitted on January 30, 1999 and was discharged on February
05, 1999. The petitioner therefore questions the veracity of the
alleged proceedings shown to have been conducted by the
Commandant when he ostensibly took cognizance of the offence
report on February 02, 1999. The petitioner asserts that after
he was discharged from the hospital, on February 12, 1999 he
was compelled to sign a few papers; and these are the ones
which pertain to the Record of Evidence. Pertaining to what
transpired at the SSFC Trial on February 18, 1999, petitioner
states that he was called by the Commandant and the charges
were read out to him, but claims to have pleaded „Not Guilty‟ i.e.
claims that the plea of „Guilty‟ recorded is false. The petitioner
highlights that the record of the trial at the arraignment does
not bear his signatures beneath the plea of „Guilty‟ recorded.
15. From the facts noted by us herein above and the rival
versions of the parties, it needs to be highlighted that the
petitioner was admittedly admitted at S.D.Hospital Lal Bagh,
Murshidabad as an In Patient on February 02, 1999 and it is
therefore difficult to believe that the petitioner appeared before
the Commandant, when as per the record, the Commandant
took cognizance of the offence report and heard the petitioner.
We highlight that the petitioner was admitted at S.D.Hospital,
Lal Bagh, Murshidabad on January 30, 1999 and was discharged
on February 05, 1999. The discharge certificate does not reveal
that the petitioner was permitted to leave the hospital for a few
hours on February 02, 1999. There is merit in the contention of
the petitioner that the record pertaining to hearing of the charge
proceedings held on February 02, 1999 is falsified.
16. But, there is hardly any merit in the plea of the
petitioner that the record pertaining to Record of Evidence is
false. Since this record bears the signatures of the petitioner on
each page, and as explained by us in paragraph 11 above, the
place where petitioner‟s signatures are to be found, is not only
different on each sheet, but is situated on the different sheets at
a point, where-from it would be difficult to believe that
signatures of the petitioner were obtained on some sheets and
the same were used to create a Record of Evidence. Further,
the record shows that the petitioner has cross-examined each
witness, and the nature of cross-examination is such that a
person having personal knowledge of the events would be
posing the questions. To Subedar S.Chatterjee 10 questions
have been put. The question and the answers read as under:-
"Q.1 What was my condition before 27 Jan
1999?
Ans. You were having swollen veins near the
joint between leg and abdominal portion.
Q.2 On 27/01/1999 at 1915 hrs was I in
drunken state?
Ans. At 1915 hrs I did not noticed, if you were
in drunken state.
Q.3 On 22/01/1999 when I return to Coy with
two days rest from MI room, why you did not give
me rest.?
Ans. You did not show me any paper,
regarding rest. Still I give you only sentry duty.
However, you have shown the MI Room slip on
28/01/1999.
Q.4 When you took my rifle what was my rifle
position?
Ans. Your rifle was in your both hands, and
you had lifted it up, butt down, barrel above your
head at 400, and hit „HC‟ Gurmukh Singh.
Q.5 Did you took me to my bed?
Ans. Yes I took you to your bed.
Q.6 At which place we had a scuffle?
Ans. It was near main gate of the BOP.
Q.7 When they brought me back where were
you?
Ans. I was in front of the gate.
Q.8 When they bring me back, whom did you
see near by you?
Ans. I saw CHM „HC‟ Gurmukh Singh and
Ct.Anil Kumar trying to break free, and you were
also abusing loudly.
Q.9 If I was intoxicated, why didn‟t you get
my medical done?
Ans. There was no medical officer near the
camp.
Q.10 When I fall down, who pushed me?
Ans. No one pushed you, however, you fell
down being unstable due to, taking of Country
liquor."
17. To HC Gurmukh Singh four questions have been put.
The questions and the answers read as under:-
"Q.1 Do you drink liquor?
Ans. No, I don‟t liquor?
Q.2 How did you come to know that day I
was having liquor and in intoxicated state?
Ans. When I went near you that day, you were
stinking of Country liquor and your body was
shaking.
Q.3 When you came to me at video hall, did
you ask any question to me?
Ans. I asked you as to what were you doing
there, as you are supposed to be on duty at the
Kote.
Q.4 When you found me near Video hall, did I
abuse any one?
Ans. No you were not abusing any one."
18. To L/Nk.Mithilesh Kumar four questions have been
put. The questions and the answers read as under:-
"Q.1 When Coy Comdr was shouting as to
where was Kote sentry who reached Coy Comdr
first?
Ans. I reached/met Coy Comdr first.
Q.2 Did you see me hitting with rifle butt to
„HC‟ Gurmukh Singh?
Ans. Yes, I did see you hitting with rifle butt to
„HC‟ Gurmukh Singh.
Q.3 When he took my weapon, what was the
position of weapon?
Ans. When you hit him with your weapon, it
was in your both hands.
Q.4 When you asked for weapon did I refuse
you to give?
Ans. I did not ask for your weapon. It was
snatched by the Coy Comdr (officiating) Subedar
S.Chatterjee himself from you and hand it over to
me."
19. To Ct.S.Mohan six questions have been put. The
questions and the answers read as under:-
"Q.1 When I came to you, did you find me in
the state of intoxication?
Ans. I don‟t know.
Q.2 Who took my weapon?
Ans. It was snatched from you by the
officiating Coy Comdr Subedar S.Chatterjee and
given to the guard Commander L/Nk.Mithilesh
Kumar.
Q.3 Where did he (Mithilesh Kumar) guard
Commander deposit my weapon?
Ans. I do not know.
Q.4 Who all escorted me to my barrack?
Ans. Coy Commander officiating, guard
Commander and CHM Gurmukh Singh.
Q.5 At which place I fell?
Ans. Approx. 10 to 15 yards inside the camp
from main gate sentry post, as it was dark I
don‟t know exact place.
Q.6 Where were you in position at that time?
Ans. It was at sentry post of main gate."
20. The questions posed by the petitioner while cross-
examining the four witnesses would render it difficult to digest
that the said record has been fabricated.
21. As per the Court of Inquiry proceedings, the
petitioner made a statement in defence, which needless to state
is as per his version of what happened on the night of January
27, 1999.
22. It is in this backdrop i.e. of the Commandant
fabricating the record pertaining to the cognizance of the
offence report as on February 02, 1999 and even the petitioner
taking an apparently wrong stand pertaining to his participation
at the Record of Evidence, we have to consider the effect of the
Commandant not obtaining the signatures of the petitioner
under the plea of „Guilty‟ made by the petitioner, as per the
record.
23. It is true that as per the BSF Rules 1969 which were
in force when the trial took place there is no requirement of
obtaining the signatures of the accused upon the accused
pleading guilty. But, prudence demands that the signature of an
accused, who pleads guilty to a charge, should be obtained
when the guilt is admitted. However, we hasten to add that a
procedural default cannot be equated as a substantive default
and merely because a plea of guilt does not bear the signatures
of the accused is no ground to conclude in favour of the
accused. The correct approach has to be, to apply the judicial
mind and look at the surrounding circumstances enwombing the
arraignment.
24. What would the surrounding circumstances be? The
Record of Evidence would be a good measure of the surrounding
circumstances. If at the Record of Evidence the accused has
cross-examined the witnesses and has projected a defence and
in harmony with the defence has made a statement, and with
respect to the defence has brought out material evidence, it
would not stand to logic or reason that such an accused would
plead guilty at a trial. But, where during Record of Evidence, if it
is a case akin to a person being caught with his pants down i.e.
it is an open and shut case, and the accused does not cross-
examine the witnesses and does not make a statement in
defence, but simply pleads for forgiveness, it would be an
instance where the accused, having no defence, would be
pleading guilty and simultaneously pleading for mercy at the
trial. We note that various decisions by Division Benches of this
Court have been taking conflicting views with respect to
absence of signatures of an accused beneath the plea of guilt at
a Summary Security Force Court trial. In the decision reported
as 2008 (152) DLT 611 Subhas Chander v. UOI the view taken
was that a plea of guilt which is not signed by the accused would
vitiate the punishment. The decision reported as 2004 (110)
DLT 268 Choka Ram v. UOI holds to the converse.
25. Neither decision has taken note of the jural principle
that a default in procedure, unless hits at the very root of the
matter, would not vitiate a decision making process.
26. It is in the aforesaid backdrop of the legal principle
and the facts noted by us herein above pertaining to the instant
case that the matter needs to be considered.
27. We reiterate, we have good proof of the
Commandant, in all probability, falsifying the record pertaining
to the offence report dated February 02, 1999. Disagreeing with
the petitioner that the Record of Evidence is a false record, but
we find that the petitioner having taken a stand by cross-
examining the witnesses and thereafter making a statement in
defence at the Record of Evidence. His defence was of being in
extreme pain due to swelling in the testicle, and overcome by
the pain, he abandoning the duty post as a guard outside the
armoury, to obtain immediate relief by visiting a doctor who
would obviously have prescribed a pain relieving medicine. To
put it simply, the petitioner was projecting a defence of
necessity. Upon success, the defence would have seriously
dented the mens rea element of the offence; and suffice would it
be to state that it is not the actus reus alone but when backed
by the mens rea that criminality is attached to an act.
28. Why would the petitioner plead guilty? In the facts of
the instant case nothing emerges which leads us to believe that
the petitioner would plead guilty.
29. Sub-Rule 2 of Rule 142 of the BSF Rules reads as
under:-
"(2) If an accused person pleads "Guilty",
that plea shall be recorded as the finding of the
Court; but before it is recorded, the Court shall
ascertain that the accused understands the
nature of the charge to which he has pleaded
guilty and shall inform him of the general effect
of that plea, and in particular of the meaning of
the charge to which he has pleaded guilty, and of
the difference in procedure which will be made
by the plea of guilty and shall advise him to
withdraw that plea if it appears from the record
or abstract of evidence (if any) or otherwise that
the accused ought to plead not guilty."
30. An incisive reading of sub-rule 2 of Rule 142 would
reveal that there are two distinct limbs thereof. As per the first
limb, if the accused pleads guilty, it is the duty of the Court to
ascertain whether the accused understands the nature of the
charge and the general effect of the plea of guilt. The second
limb is for the Court to read the Record of Evidence or the
Abstract of Evidence, as the case may be, and if it appears from
the record that the accused ought to plead not guilty, to record
a plea of not guilty (despite the accused having pleaded guilty)
and proceed with the trial.
31. The record reveals that after recording the plea of
Guilty, the Commandant has only recorded satisfaction of the
first limb of sub-rule 2 of Rule 142 and not the second. It stands
recorded as under:-
"The accused having pleaded guilty to the
charge, the Court explains to the accused the
meaning of charge(s) to which he has pleaded
guilty and ascertains that the accused
understands the nature of the charge(s) to which
he has pleaded guilty. The Court also informs
the accused the general effect of that plea and
the difference in procedure which will be
followed consequent to the said plea. The Court
having satisfied itself that the accused
understands the charge(s) and the effect of his
plea of guilty, accepts and records the same.
The provisions of Rule 142(2) are complied with."
32. We are accordingly constrained to hold in favour of
the petitioner and against the respondents. Two facts lean in
favour of the view taken by us. The first is the Commandant
falsifying the record pertaining to February 02, 1999, offence
report proceedings and the second being that the petitioner had
been projecting a defence, which was backed by his medical
condition i.e. the petitioner‟s compulsion, being in seething pain
due to testicle swelling, to abandon the duty post and rush to a
doctor which would had removed the culpable mens rea with
reference to the act of the petitioner, thereby leading towards a
suggestion that the petitioner did not plead guilty at the trial;
the Commandant who could falsify the offence report
proceedings on February 02, 1999 could well have thereby
falsified the trial proceedings as well. In any case, there is a
complete dereliction of duty by the Commandant to ignore the
second limb of sub-rule 2 of Rule 142 of the BSF Rules 1969.
33. The trial being vitiated, and unfortunately the writ
petition being decided by us after nearly 12 years of it being
filed compels us not to grant permission for the petitioner being
re-tried.
34. But, we intend not to grant any back-wages to the
petitioner, and for which our reason is that howsoever
excruciating was the pain under which the petitioner was
labouring when on duty at the Kote on the night of January 27,
1999, he knew that he was carrying arms. It may be his
compulsion, arising out of necessity, to visit the doctor and thus
it became his compulsion to abandon the duty post and walk out
of the precincts of the Border Out Post. But why did he not
handover the Self Loading Rifle and the ammunition to
Ct.S.Mohan who was on sentry duty at the gate of the Border
Out Post, and as per whom (refer his statement made at the
Record of Evidence), that when he saw the petitioner walk out of
the Border Out Post carrying his arms and ammunition, he tried
to stop the petitioner, who uncaringly went away. Howsoever
excruciating was the pain, the petitioner was walking and this
means that the pain was not of such extreme unbearable
character that the petitioner was just not in his senses. We may
overlook the fact that the petitioner abandoned the armoury
because he was in excruciating pain, but cannot overlook the
fact that in spite of Ct.S.Mohan cautioning him, the petitioner
took along with him his arms and ammunition and walked to a
residential colony nearby. He is also in default.
35. A relevant fact also needs to be noted pertaining to
petitioner‟s character. It stands recorded in the trial
proceedings that the petitioner had not committed any offence
while in service of 11 years and 3 days. He was never punished
even once. His general character was satisfactory and he has
earned 7 cash rewards.
36. We dispose of the writ petition declaring that the trial
against the petitioner is vitiated and as a consequence we quash
the penalty of dismissal from service inflicted upon the
petitioner. The petitioner shall be reinstated in service but shall
not be entitled to any back-wages. However, the period in
question would be reckoned as service rendered for pension
purposes. The petitioner would be restored his seniority and on
reinstatement his pay would be fixed by giving him notional
increments for the period interregnum the date when petitioner
was dismissed from service till he is reinstated.
37. Needful would be done by the Department within 8
weeks from today.
38. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(MANMOHAN SINGH)
JUDGE
AUGUST 06, 2012
dk
