Devender Kumar vs Union Of India & Ors.
2012 Latest Caselaw 3196 Del

        *        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision: 14.05.2012

+                         W.P.(C) No.1532/1999

Devender Kumar                                    ...      Petitioner

                                  Versus
Union of India & Ors.                             ...      Respondents

Advocates who appeared in this case:

For the Petitioner        : Mr. Ankur Chhibar, Advocate
For Respondents           : Ms. Barkha Babbar, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

1. The petitioner has sought quashing of order dated 27th February,

1998 passed by the SSFC dismissing the petitioner from service on the

basis of alleged plea of pleading Guilty and to direct the respondents to

reduce the punishment from dismissal to any other punishment as per

the provision of the BSF Act.

2. Brief facts to comprehend the disputes are that the petitioner had

joined the Border Security Force as a Constable in August, 1990.

Subsequently, he was made to work as a constable driver at 151st Bn

SHQ Siliguri. Thereafter, in January, 1998, the petitioner was

temporarily attached to the 151 Bn, BSF, Rani Nagar.

3. As contended by the petitioner, on 28th January, 1998 a Sentry in

the Camp had reported to the Head Constable K.B. Patel, that noise was

coming from the nearby village. HC K.B. Patel, therefore, sent the

petitioner along with other two Constables to visit the nearby village

and find out the cause of the noise. On reaching the village, however,

the petitioner contends that he was surrounded and attacked by some

unknown persons. Subsequently, he managed to escape, when another

party of officers was sent by the Commander, HC K.B. Patel to release

him from the villagers.

4. However, on returning back from the village the Unit

Commandant initiated disciplinary proceedings against the petitioner

on the allegation that the petitioner had disobeyed the general orders,

as he had quarreled with the villagers. Thereafter, as per the petitioner,

he was detained in the Guardroom and at the same time, he was also

placed under suspension by the Unit Commandant by order dated 2nd

February, 1998. The petitioner was also ordered not to leave the

premises without prior approval.

5. On 25th February, 1998 a charge sheet was issued charging the

petitioner under Section 22-E of the BSF Act for neglecting to obey a

general order and under Section 40 of the BSF Act for conduct that is

prejudicial to the good order and discipline of the force. The charge

sheet dated 25th February, 1998 is reproduced as under:

APENDIX VI (Rule 53 (2)) CHARGE SHEET

The accused No.90199019 Constable (Driver) Devinder Kumar Sector HQrs BSF Siliguri (attached with 151 Bn BSF) is charged with :-

1. BSF ACT 1968 SECTION 22 (e) BSF ACT 1968 SECTION 22

(e) NEGLECTING TO OBEY A GENERAL ORDER/ In that he, at BOP Bhatpara under 151 Bn BSF on 28-01-98 at about 2000 hrs visited the house of Khusrruddin of village-Hadiya Para placed out of bound to all ranks vide BN Order No.Ops/Order/151/96/5868-73 dated 30-07-96.

1. BSF ACT 1968 SECTION 40 BSF ACT 1968 SECTION 40 AND ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that he, While posted at BOP Bhatpara on 28-01-

98 at about 2000 hrs went to village Hadiya para entered into the house of Hasina Khatoon with bad intention whereas he was gheraoed by the villagers and detained until rescued by BOP personnel.

Raninagar (...B)                                (D S RAWAT)
                                               COMMANDANT
Dated, the 25th Feb‟ 98                        151 Battalion BSF

6. Thereafter, on 27th February, 1998 the petitioner was tried before

the Summary Security Force Court. According to the petitioner, the

enquiry was conducted in a hurried manner and was done without the

Unit Commandant applying his mind to the facts and circumstances of

the case and on the same day the order of dismissal was passed against

the petitioner.

7. Aggrieved by the order of dismissal, dated 27th February, 1998,

the petitioner made various representations to the higher authorities,

by letters dated 1st March, 1998, 2nd March, 1998 and 16th March,

1998. However, by letter dated 15th July, 1998 the statutory

representation of the petitioner was rejected as being devoid of any

merit.

8. Thereafter, the petitioner approached this Court invoking its writ

jurisdiction for seeking the quashing of the termination order dated 27th

February, 1998, and also seeking quashing of the excessive power

delegated to the Unit Commandant under Sections 70, 74 and 114 of

the BSF Act, 1968, inter alia, on the ground that excessive power has

been given to the Unit Commandant, as he is the sole authority to

initiate a proceedings, to try the offence and to punish a person under

his charge without any requirement of confirmation of his decision by

any higher authority.

9. The petitioner further pointed out that in case of a sentence

passed by the Director General Security Force, the confirmation by the

Central Government u/s 108 of the BSF Act is required, and that in

case of a sentence passed by the Petty Security Force Court too, the

confirmation by the Central Government u/s 90 of the BSF Act is

required. However no such safeguards have been provided under the

Act in the case of the Summary Security Force Court. According to the

petitioner, since the Unit Commandant can authorize any sentence

upon a person except for the death sentence and imprisonment

exceeding one year, the fact that his decision does not need any

confirmation by any other higher authority has led to excessive

delegation and could occasion, as in his case, the gross abuse of such

powers.

10. The petitioner has also contended that his pleading `guilty, could

not be acted upon during the SSFC proceedings, as he had not signed

the same and it had been recorded as if he had. It is further urged that

even if it is accepted that he had indeed pleaded guilty then the

mandatory requirement of Rules 142 and 143 had to be complied with,

which wasn‟t at the time and nothing was explained to him.

Considering the facts and circumstances the Commandant should have

converted the alleged plea of guilty to not pleading guilty.

11. It is also contended that there is no evidence on the record to

support of his conviction, and that the perusal of the statements of the

witnesses during ROE reveal that the very statement of the alleged

victim has not been recorded. Thus, the petitioner contended that the

entire proceedings were a sham, and that the principles of natural

justice had been grossly violated, since he didn‟t get the opportunity to

defend himself properly.

12. The petitioner has further contended that the trial was conducted

without application of mind on the part of the Unit Commandant and

that it was all wrapped up within an hour, after which it was decided to

dismiss the petitioner without assigning any reasons. The petitioner

also contended that the punishment awarded by the authorities is

disproportionate to the alleged offence and reliance in this regard is

placed on Ranjit Thakur v. UOI, AIR 1987 SCC 2386 wherein it was

held by the Supreme Court that the quantum of punishment is within

the jurisdiction and discretion of the Court Martial and that the

sentence has to suit the offence.

13. The pleas and contentions of the petitioner have been refuted by

the respondents in the counter affidavit dated 25th August, 2000 by

contending that on 28th January, 1998 at about 2000 hours the

petitioner went out of the BOP without taking any permission or

informing anyone at the BOP and visited the house of a divorcee

women, namely Hasina Khatoon and Sakina Khatoon, residents of

village Hadiapura with bad intent. There, however, the petitioner was

caught by the brother of the two women and a scuffle had taken place.

Consequently, an alarm had been raised by the villagers, and the

matter was reported to the BOP Commander, HC K.B. Patel. Meanwhile,

according to the respondents, the petitioner somehow had managed to

escape the village and return to the camp without anyone noticing the

same.

14. On receiving the information regarding the alarm being raised in

the village, HC K.B. Patel had detailed a party comprising of the

petitioner, Constable Satpal and W/C Ganesh Chand, to go to the

village and find out the cause of the commotion.

15. As soon as the party reached the village, the villagers recognized

the petitioner and gathered around him. Constable Satpal and Ganesh

Chand somehow managed to escape, however, they left the petitioner

behind, and they immediately reached the BOP and informed HC K.B.

Patel about the incident. Again a party comprising of Ct. Bancha Ram,

Satpal and Ganesh Chand reached the village and asked the villagers to

release the petitioner. On threatening the villagers, they finally managed

to rescue the petitioner and on returning to the BOP, the entire incident

was reported to the Commander and an enquiry was initiated into the

matter.

16. The respondents have further contended that an offence report

was submitted on 4th February, 1998 and an ROE was ordered for the

offences committed under Sections 22(e) and 40 of the BSF Act. It is

also urged that sufficient time was taken in conducting the enquiry,

and that after the preparation of the ROE the Commandant had applied

his mind to the facts that were brought out in the ROE and thereafter,

the Summary Court Proceedings were convened and substantial

evidence was found on the record to inculpate the guilt of the petitioner.

17. It is also submitted that the petitioner was given the opportunity

to cross-examine the witnesses during the ROE as per the requirements

of Rule 48(3), however, the petitioner had refused to do so. It is further

contended that even during the SSFC proceedings the petitioner was

again cautioned and given an opportunity to make a statement or

produce any evidence in his defense, however, this opportunity too was

also declined by the petitioner.

18. According to the respondents, all the provisions of the BSF Act

and the Rules had been duly observed, while dismissing the petitioner

from the service and thus, this Court should not interfere with the

sentence of dismissal under its writ jurisdiction, as the scope of

interference under Article 226 is limited. Therefore, it is contended that

this Court should not assume the role of the Appellate Authority.

19. The pleas raised on behalf of the respondents have been denied

by the petitioner in his rejoinder dated 12th October, 2000 by

contending that the Unit Commandant had not conducted a proper

enquiry, and that the petitioner had not pleaded "guilty" during the

course of the proceedings, which had been recorded otherwise in the

cyclostyled papers contained in the record. According to the petitioner,

this plea is also evident from the fact that the plea of "guilty" does not

bear any signatures of the petitioner. In any case, as per the petitioner,

even if the plea of guilty is to be believed then also the order of

dismissal deserves to be quashed since the necessary safeguards

prescribed under Rule 143 and 142 were not complied with. Thus, the

petitioner has contended that he was gravely prejudiced and that the

principles of natural justice had been violated and consequently, the

entire SSFC proceedings are vitiated.

20. Regarding the statements of the witnesses recorded during the

ROE, the petitioner has contended that none of the statements

inculpate the guilt of the petitioner and, in fact, the alleged victims or

the person aggrieved in the said matter have not even been examined by

the respondents. Thus the petitioner contends that there is no evidence

on the record to substantiate the finding of guilt as against the

petitioner. The petitioner urges that the ROE was prepared unilaterally

by the Unit Commandant, maliciously and in a haphazard manner to

single out the petitioner. The petitioner also contends that he was not

given the opportunity to have his version recorded at the time of the

ROE and thus he was denied the proper opportunity to defend himself.

21. Learned counsel for the petitioner relied on the plea that the

petitioner had not pleaded guilty as the `plea of the guilty‟ is not signed

by the petitioner. Reliance was placed by learned counsel for the

petitioner on 171 (2010) DLT 261, Vimal Kumar Singh (Ex.L/NK) v.

Union of India & Ors.; 172 (2010) DLT 200, Balwinder Singh v. Union

of India & Ors.; 134 (2006) DLT 353, Banwari Lal Yadav v. Union of

India & Anr.; W.P.(C) No.14098/2009, Ex. Constable Vijender Singh v.

Union of India & Ors., decided on 1st October, 2010; 152 (2008) DLT

611, Subedarhash Chander (Ex. Naik) v. Union of India & Ors.; LPA

254/2001, The Chief of Army Staff & Ors. v. Ex. K. Sigmma Trilochan

Behera; 1989 (3) SLR 405, Uma Shankar Pathak v. Union of India &

Ors. and 2008 (104) DRJ 749 (DB) Mahender Singh (Ex. Constable) v.

Union of India & Ors., in support of the pleas and contentions raised on

behalf of the petitioner that the alleged `plea of guilty‟ by the petitioner

cannot be accepted and the whole SSFC proceedings are vitiated.

22. Learned counsel for the respondents has relied on 110 (2004)

DLT 268 Chokha Ram v. Union of India & Anr.; Ex. Constable Ram Pal

v. Union of India & Ors., W.P.(C) 3436/1996 decided on 27th July, 2011

and W.P.(C) No.4997/1998, Kalu Ram v. Union of India & Ors., decided

on 3rd August, 2011 to contend that the ` plea of guilty‟ was not

required to be signed and the SSFC proceedings cannot be vitiated on

account of not signing the „plea of guilty‟ by the petitioner, nor it can be

inferred that the petitioner had not pleaded guilty.

23. This Court has heard the learned counsel for the parties in detail

and has also perused the writ petition, the counter affidavit and the

rejoinder along with all the documents appended to them and the

judgments relied on and referred to by the learned counsel for the

parties. The respondents had also produced the original record of the

SSFC which has also been perused by this Court.

24. It is evident from the record that the plea of guilty was recorded

on a cyclostyled/typed sheet. A scanned copy of original record of plea

of guilty and the alleged compliance of Rule 142 & 143 as recorded in

the SSFC is as under:

25 Few relevant facts which emerge from the original record of SSFC

are that the `plea of guilty‟ is recorded at page number 30 of the SSFC

record. It is a typed page and underneath, the plea of „guilty‟ the alleged

compliance of Rule 142 is recorded. The plea of „guilty‟ is not signed by

the petitioner or by the Commandant. After the petitioner allegedly

pleaded guilty, it is recorded that the Court read and explained the

meaning of the charge, the effect of the petitioner pleading guilty and

the difference in the procedure which will be followed since the

petitioner had pleaded guilty to the charge. The Court, therefore, had

satisfied itself that the petitioner had understood the charges (`both the

charges‟ is written in hand and is not typed) and the plea of guilty,

particularly in relation to the difference in procedure that will be

followed and thus it is stipulated that the provision of BSF rule 142 (2)

have been complied with. This certificate about compliance of

requirement of Section 142 and 143 is not signed by the Commandant.

The SSFC proceedings too are only initialed on the left hand margin on

all pages. Before the `plea of guilty‟ obtained from the petitioner, it is

written that the charges were translated and explained to the petitioner.

Though it is recorded that the Court had satisfied itself that the charges

are understood by the petitioner, however, it does not specify that the

plea of guilty and the alleged compliance of Rule 142 and 143 as

recorded in English, was also translated and explained to the petitioner.

If it is not so recorded, the only inference that can be drawn is that it

was not done.

26. It is also imperative to note that while the plea of guilty is

recorded on page 30, the proceedings on the plea of guilty is recorded

on page 28 and the verdict of the court is recorded at page no. 21 and

20. The pagination of the SSFC proceedings are required to be in

ascending order (as ROE in the original file shows that the page

numbering starts from the last page and it is in ascending order) and

thus the earlier steps of the proceedings, should have been on the

earlier pages. In the normal course of a trial the „proceedings on the

plea of guilty‟ should have succeeded the page containing the plea of

guilty and it should have finally concluded with the verdict of the Court.

However, from the record it appears that the proceedings of Court‟s

verdict are on pages 31, 21 and 20 and in between the proceedings of

plea of guilty about compliance of Rule 142 and 143 have been inserted.

Thus, it leads to the only inference that the cyclostyled/typed pages

were filled up subsequently and therefore, there is reasonable doubt

about the genuineness of the SSFC proceedings. It reasonably appears

to have been manipulated by the Commandant. No rational explanation

has been given as to how the proceedings of the earlier date, will come

on the subsequent page when the record is maintained in the ascending

order.

27. According to the record of the SSFC proceedings, it was allegedly

put to the petitioner, whether he wishes to make any statement in

reference to the charge or in mitigation of the punishment. This

question was put in English. It is not recorded that it was explained to

the accused in the language which he understood, i.e. Hindi. The

answer of the accused has also been written in English. Even this

alleged statement of the petitioner is not signed by him.

28. Similarly another question had been put to him in English,

whether he wishes to call any witnesses as to the Character. The

answer has been recorded as 'the accused does not want to call any

witnesses‟. This too has not been signed by the petitioner or even by the

Commandant who conducted the SSFC proceedings. All the SSFC

proceedings are initialed by someone in the left hand margin.

29. Thus, the proceedings, the scanned images of which are

reproduced hereinabove, creates reasonable doubt about the version of

the respondents that the petitioner had pleaded guilty and that the plea

of guilty was recorded in compliance with the requirements of Rules 142

and 143 of the BSF Rules. Rather the perusal of the proceedings

substantiate the version of the petitioner that a proper enquiry was not

conducted, and that he has been punished without any SSFC

proceedings. It is apparent that in these facts and circumstances he

had not pleaded guilty and thus, the entire SSFC proceedings are

vitiated.

30. The Courts have laid down time and again the requirement of

signing the plea of guilty by the accused in the SSFC proceedings of

BSF and other Forces including the Army. The rules of BSF regarding

recording the `plea of guilty‟ are pari materia with the rules of Army in

this regard. In Uma Shankar Pathak (supra), a Division Bench of the

Allahabad High Court while dealing with Rule 115 (2) of Army Rules,

1954 regarding the `plea of guilty‟ which is pari materia with the BSF

Rule 142 had held that the bald certificate given by the Commanding

Officer stating that the provision of Army Rule 115(2) are complied with,

is not sufficient and enough. It was held that what is expected of the

Court, where the accused pleads guilty to any charge is that the record

of proceedings itself must explicitly state that the Court had fully

explained to the accused the nature and the meaning of the charge and

made him aware of the difference of procedure. The Division Bench of

Allahabad High Court had further held that the rule further

contemplates that the accused person should be fully forewarned about

the implication of the charge and the effect of pleading guilty. The

procedure prescribed for trial of cases where the accused pleads "guilty"

is radically different from that prescribed for trial of cases where the

accused pleads "not guilty". According to the Court, the procedure in

cases where the plea is of "not guilty" is far more elaborate than in

cases where the accused pleads "guilty". The Court had held that in

view of the Rule 115 (2) of the Army Rules, the question and answer

put to the accused are to be reproduced by the Court in their

entirety and should be recorded verbatim. This was not done in the

case of Uma Shankar Pathak, instead the Summary Court Martial had

merely satisfied itself with the certificate that stated that the "provision

of Army Rule 115 (2) was complied with". In the facts and

circumstances, the High Court had set aside the order and sentence

passed by the Summary Court Martial and quashed the same and the

charged officer was reinstated with all monetary and service benefits

and he was also awarded the cost of the petition. The High Court had

held as under:

„10. The provision embodies a wholesome provision which is clearly designed to ensure that an accused person should be fully forewarned about the implications of the charge and the effect of pleading guilty. The procedure prescribed for the trial of cases where the accused pleads guilty is radically different from that prescribed for trial of cases where the accused pleads „not guilty‟. The procedure in cases where the plea is of „not guilty‟ is far more elaborate than in cases where the accused pleads „guilty‟. This is apparent from a comparison of the procedure laid down for these two classes of cases. It is in order to save a simple, unsuspecting and ignorant accused person from the effect of pleading guilty to the charge without being fully conscious of the nature thereof and the implications and general effect of that plea, that the framers of the rule have insisted that the Court must ascertain that the accused fully understands the nature of the charge and the implications of pleadings guilty to the same.

13. It is thus apparent that the questions and answers have to be reproduced by the Court in their entirety, which, in the context of Army Rule 115(2), means all the questions and answers must be reproduced verbatim. In the present case however, the Court has not done this. Instead the Court merely content itself with the certificate that the provisions of Army Rule 115(2) are here complied with‟."

31. Learned counsel for the respondents has relied on Kalu Ram

(supra), the decision of the Division Bench in WP(C) 4997/1998,

decided on 3rd August, 2011. In the said case, the allegation against

the member of the force was that he committed an offence punishable

under Section 40 of the BSF Act. He was tried by the SSFC and was

awarded the sentence of dismissal from service. The member of the

force, a Constable with BSF was attached with 84 Bn deployed at BOP

Malda Khan and he was detailed to perform Naka duty at Naka No.3.

During the course of the duty, the said constable went to Village Dhaul

and consumed liquor and while returning he fought with another

constable and he allegedly fired a shot in the air from a self loaded Rifle

issued to him. Record of evidence was prepared in which 8 witnesses

were examined. After considering the record of the evidence, the

Commandant had ordered convening of the Summary Security Force

Court (SSFC) to try the said constable. During the trial, Kalu Ram, the

constable allegedly pleaded guilty to the charges framed against him

and after complying with Rule 142 of BSF Rules, 1969, the SSFC

recorded that the `plea of guilty‟ was admitted by the said constable and

by order dated 7th October, 1997 he was convicted. The said constable

was dismissed from service by the SSFC taking into consideration that

he had been convicted earlier five times for various offences and that

his general character was found to be unsatisfactory. The petitioner,

Kalu Ram, assailed the findings of the SSFC on the ground that he had

not pleaded guilty but the `plea of guilty‟ was allegedly taken from him.

It was asserted that the `plea of guilty‟ was vitiated as the documents

incorporating/containing the `plea of guilty‟ did not bear his signatures

and, therefore, ultimately the findings of the SSFC stood vitiated. A

Division Bench of this Court referred to Vimal Kumar Singh (Ex.L/NK)

Vs. Union of India & Ors.; Subhash Chander (Ex. Naik) Vs. Union of

India & Ors. and Chokha Ram Vs. Union of India & Anr. and had held

that in view of the legal position in these cases, it could not be

universally laid down that the `plea of guilty‟ taken from the charged

officer will stand vitiated in every case where the document containing

the plea of guilty of charged officer does not bear his signatures. In para

21 & 22 of the Kalu Ram (supra), the Division Bench of this Court had

held as under:-

"21. In the decisions reported as Lance Naik Vimal Kumar Singh v. Union of India MANU/DE/1512/2010 and Subhash Chander v. Union of India MANU/DE/1266/2008 the plea of guilt taken by the petitioners therein was held to be vitiated as the document containing the plea of guilt of the petitioners did not bear the signatures of the petitioners. On the other hand in the decisions reported as Chokha Ram v. Union of India 110 (2004) DLT 268 and Diwan Bhai v. Union of India MANU/DE/1823/2001 it was held that plea of guilt taken by the petitioner therein cannot be held to be vitiated on the ground that the containing the plea of guilt of the petitioners does not bear the signatures of the petitioners when there is no specific legal requirement to obtain signatures of a charged officer on the plea of guilt taken by him.

22. In view of the above legal position, it cannot be universally laid down that the plea of guilt taken by a charged officer would stand vitiated in every case where the document containing the plea of guilt of the charged officer does not bear the signatures of the charged officer. What would be the effect of non-bearing of signatures of the charged officer in document containing the plea of guilt by him on the veracity of the plea of guilt taken by him depends on facts and circumstances of each case."

32. Learned counsel for the respondents had also relied on Ex.

Constable Ram Pal (supra), in support of the plea on behalf of the

respondents that even if the punishment awarded by the SSFC is set

aside on the ground that the `plea of guilty‟ was not signed by the

petitioner, then in that case the respondents should be permitted to try

the petitioner afresh.

33. Perusal of the said decision of Ex. Constable Ram Pal (supra) in

WP(C) 3436/1996 decided on 27th July, 2011, however, reveals that the

same Division Bench which had held in the case of Kalu Ram (supra)

that it cannot be universally laid down that `plea of guilty‟ taken from a

charged officer will not stand vitiated in every case where the

documents containing the `plea of guilt‟ of the charged officer does not

bear the signatures of the charged officer, had held in the case of the

Ex. Constable Ram Pal (supra) that if a charged officer pleads guilty to

the charges, the least that is required to be done is to obtain the

signatures of the accused under the `plea of guilty‟, as in such

circumstances this is the only evidence on the basis of which a charged

officer is convicted. Relying on Subhash Chander (Ex. Naik) v. Union of

India & Ors., 152 (2008) DLT 611, the same Division Bench had held

that not signing the `plea of guilty‟ by the charged officer was a

fundamental error and consequently the conviction of the charged

officer by the SSFC was set aside. The said Division Bench of this Court

in Ex. Constable Ram Pal (supra) had held in para 18, 19 and 20 as

under:-

"18. The original record produced before us shows that it has been recorded that when the indictment was read at the trial the petitioner pleaded guilty. But we find that the petitioner has not signed the plea of guilt. Now, if a person pleads guilty to a charge, the least what is required to be done is to obtain the signatures of the accused under the plea of guilt, for the reason this was to be the only evidence, if there is a dispute, whether or not the accused pleaded guilty.

19. In a similar situation noting that the plea of guilt was sans the signatures of the accused, in the judgment reported as 2008(152)DLT611, Subhash Chander Vs. Union of India & Ors., the conviction and punishment based upon the plea of guilt was negated. It was held that it would be permissible to try the accused at a re-convened Summary Security Force Court.

20. Since we have found a fundamental error, we do not deal with the issues whether at all the petitioner was given adequate time to defend himself at the trial or whether or not he was given an opportunity to engage a defence assistant, for the reason all these were to be irrelevant once we hold that the petitioner needs to be re-tried."

34. Thus the same Co-ordinate Bench which had decided the Kalu

Ram (supra), on which reliance has been placed emphatically by the

respondents had not considered its earlier judgment in the matter of

Ex. Constable Ram Pal (supra) wherein it was held that if a person

pleads guilty to a charge, the least that is required to be done is to

obtain the signatures of the accused under the `plea of guilty‟. Even in

Kalu Ram (supra) the reasoning that the `plea of guilty‟ need not be

signed was not held conclusively, since the said writ petition was

dismissed in default. The reasoning in the Kalu Ram (supra) given by

the Division Bench, thus, will not be conclusive and binding, as the

same Division Bench did not consider its earlier findings and reasoning

in the case of Ex. Constable Ram Pal (supra), nor was any reason given

to differ with the diametrically opposite reasoning and inferences given

in Ex. Constable Ram Pal (supra). The findings of the Division Bench in

the case of Kalu Ram (supra) will also be not conclusive for the reason

that the case of Kalu Ram (supra) was not conclusively decided by the

said Bench and the observations were made on the premise that the

writ petition may be got restored by Kalu Ram, as the writ petition was

decided not on merits, but was dismissed in default of appearance of

Kalu Ram and his counsel and in the eventuality of petition being

restored, the Division Bench may recollect as to what was held by it. In

para 25 of the said decision of Kalu Ram (supra) the Division Bench had

held as under:-

"25. Be that as it may, since none appears for the petitioner at the hearing today, we dismiss the writ petition in default, but have troubled ourselves to record as above since we had spent time reading the file in chamber and do not wish our labour to be lost should the writ petition be restored at the asking of the petitioner."

35. Therefore, reliance cannot be placed by the respondents on Kalu

Ram (supra) to contend that even if the `plea of guilty‟ is not signed by

accused before the SSFC, the punishment awarded by the SSFC shall

not be vitiated.

36. In the facts of this case, thus, it cannot be inferred that the

petitioner had pleaded guilty. It is also evident from the ROE that at the

time the petitioner had gone to enquire about the noise in the village,

the petitioner was accompanied by Constables Satpal, PW-4 and

Ganesh Chand, PW-3 and that thereafter, when he was released from

the villagers, Constables Satpal, PW-4 Ganesh Chand, PW-3 and

Bancha Ram, PW-1 were present with him. However, perusal of their

statements reveals that they could not properly understand what the

villagers were speaking in Bengali and Constable Bancha Ram, PW-1

also deposed that HC K.B. Patel did not record the incident in the GD

Register. It is also evident from the record that even though it was

alleged that the petitioner had entered the house of one Hasina

Khatoon, with bad intention, however, the said person has not been

examined. In these circumstances, it was also incumbent upon the

Commandant to have recorded as to how he had complied with the

requirement of the BSF Rules 142 and 143 than merely stating that the

ramification of pleading guilty by the petitioner was explained to him. In

the entirety of these facts and circumstances as detailed hereinbefore it

is apparent that the petitioner was punished with dismissal without any

evidence on the record and that the proceedings of the SSFC were

prepared and the SSFC was conducted in gross violation of the

provisions of the BSF Act and Rules.

37. Though in Chokha Ram (supra) another Division Bench had held

that the `plea of guilty‟ will not be vitiated for not bearing the signatures

of the accused, however, the other Division Benches of this Court in the

cases of Ex. Constable Ram Pal (supra); Ex. K. Sigmma Trilochan

Behera and Vimal Kumar Singh (supra) relied on Laxman (Ex. Ract.) v.

Union of India & Ors., 103 (2003) DLT 604 and Uma Shankar Pathak v.

Union of India & Ors., 1989 (3) SLR 405; Balwinder Singh v. Union of

India & Ors., 172 (2010) DLT 200; Subhash Chander (Ex. Naik) v.

Union of India & Ors., 152 (2008) DLT 611 and in Mahender Singh (Ex.

Constable) v. Union of India & Ors., 2008 (104) DRJ 749 (DB) have

consistently held that the `plea of guilty‟ recorded on printed or typed

form and not signed by the accused cannot be accepted and shall vitiate

the proceedings of the SSFC and any punishment awarded pursuant to

such `plea of guilty‟ by the SSFC will also be not sustainable. In

Mahender Singh (supra) another Division Bench of this Court rather

held that it is desirable for DG BSF to frame guidelines on parity with

Army issuing specific instructions in respect of the manner of recording

the ` plea of guilty‟. The Division Bench had held in para 12 of said

judgment:

" We may also note that it is desirable that the Director General, BSF, on parity of the guidelines of the Army should issue instructions in respect of the manner of recording the ` plea of guilty‟ because of serious consequences which arise in such cases as also the

environment in which the personnel are tried. The object is to ensure that both in letter and spirit the mandate of the Rule is complied with and the accused person is fully conscious of the consequences of pleading guilty.

The learned counsel for the petitioner contended that pursuant to

the above direction in the above noted case, guidelines also have been

issued by the respondents and implemented which fact has not been

denied by the learned counsel for the respondents.

38. Thus, reliance cannot be placed on the decision of the Division

Bench in case of Chokha Ram (supra) as the said Bench had not

considered the decision of Uma Shankar Pathak (supra) and because

the other Co-ordinate Benches too have not followed the alleged ratio of

Chokha Ram in their subsequent decisions. Another distinguishable

feature of Chokha Ram (supra) is that the delinquent, Chokha Ram had

not only pleaded guilty before the SSFC but during the course of

recording of evidence i.e. during the ROE, he had also made a

statement admitting his guilt. It was held that the plea of guilty in the

ROE could be used as an evidence against him in the SSFC trial and

that weighed upon the Division Bench while holding that even if before

the SSFC the plea of guilty was not signed by the delinquent member of

the force, the same can be accepted as there was evidence in support of

the same, i.e. the statement of the delinquent before the ROE admitting

his guilt. In the circumstances, in Chokha Ram (supra) the Court did

not lay down an absolute preposition that the `plea of guilty‟ before the

SSFC under Rule 142 of the BSF Rules need not to be signed before it

can be relied on. Rather the said opinion was formed in the backdrop of

the peculiar facts and circumstances of Chokha Ram (supra).

39. It is no more res integra that the ratio of any decision must be

understood in the background of the facts of that case. What is of the

essence in a decision is its ratio and not every observation found

therein, nor what logically follows from the various observations made

in it. It must be remembered that a decision is only an authority for

what it actually decides. It is well settled that a little difference in facts

or additional facts may make a lot of difference in the precedential value

of a decision. The ratio of one case cannot be mechanically applied to

another case without having regard to the factual situation and

circumstances in two cases. The Supreme Court in Bharat Petroleum

Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778)

had held that a decision cannot be relied on without considering the

factual situation. In the said judgment the Supreme Court had

observed:-

"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's

theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.

In Rafiq Vs State, (1980) 4 SCC 262 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

40. What emerges from above is that in the above noted matters the

Division Benches of this Court have consistently held that if the `plea of

guilty‟ is not signed by the delinquent, then it cannot be accepted and

acted upon and the proceedings of the SSFC based on such `plea of

guilty‟ shall be vitiated and the punishment awarded pursuant thereto,

is also liable to be set aside.

41. Consequently, for the foregoing reasons and in the facts and

circumstances of the above case, it cannot be accepted that the

petitioner had accepted his guilt before the SSFC, as the `plea of guilty‟

was not signed by the petitioner, and there have been other violations of

Rules 142 and 143 of BSF Rules, 1969 so as to vitiate the punishment

of dismissal from service awarded by the respondents, pursuant to the

plea that the petitioner had pleaded `Guilty‟ of the charges framed

against him. Resultantly, the order of the SSFC dated 27th February,

1998 is set aside and the petitioner is entitled for reinstatement

forthwith with all the back wages and consequential benefits including

promotion and the period from the date of his dismissal up till the date

of his reinstatement is to be counted for all purposes in favor of the

petitioner.

42. The next contention on behalf of the respondents is that even if

the petitioner‟s punishment by the SSFC dated 27th February, 1998 is

set aside on the ground that the `plea of the guilty‟ by the petitioner

could not be accepted as it was not signed by him and there was no

other evidence showing that the petitioner had pleaded guilty, the

respondents will be entitled to try the petitioner afresh on the charges

framed against him.

43. In support of this contention by the respondents for a fresh trial,

reliance has been placed by the respondents on Ex. Constable Ram Pal

(supra). The learned counsel for the respondents Ms. Barkha Babbar

has contended that in Ex. Constable Ram Pal (supra), a Division Bench

had permitted the respondents to try the delinquent afresh and

therefore, this Court should permit the respondents to try the petitioner

afresh.

44. Perusal of the decision of Ex. Constable Ram Pal (supra) reveals

that no reasons have been given by the Division Bench to permit the

respondents to try the delinquent afresh except holding without giving

any reason that the respondents shall be entitled to try the delinquent

afresh in para 21 of the said judgment. In para 21 and 22 of Ex.

Constable Ram Pal (supra) the said Division Bench had held as under:-

"21. Accordingly, we disposed of the writ petition quashing the order dismissing the petitioner from service as also the petitioner‟s conviction at the Summary Security Force Court. We permit the department to try the petitioner afresh. We leave it open to the competent authority to determine as to in what manner the period post levy of penalty of dismissal from service till petitioner reinstatement pending trial would be reckoned.

22. The petitioner would be reinstated forthwith."

45. The learned counsel for the petitioner has refuted this contention

of the respondents and has contended that the trial of the petitioner by

the SSFC has not been set aside on account of the inherent lack of

jurisdiction but because the trial was unsatisfactory. He asserted that

keeping in view the embargo under Section 75 of the BSF Act and

Article 20 of the Constitution of India, fresh trial of the petitioner shall

not be permissible. Reliance has also been placed by the learned

counsel for the petitioner on Banwari Lal Yadav v. Union of India, 134

(2006) DLT 353.

46. This cannot be disputed by the respondents that the SSFC which

tried the petitioner and punished him with dismissal from service on

27th February, 1998 was competent to try the petitioner and the

Security Force Court did not lack the jurisdiction to try him. However,

in the facts and circumstances, what emerges is that the proceedings of

the SSFC were not satisfactory as there was no evidence except the

reliance of the Court on the alleged `plea of guilty‟ by the petitioner

which has not been accepted and has already been set aside by this

Court. In the circumstances, the trial of the petitioner will not be non

est being null and void from its very inception as the SSFC had the

jurisdiction to try the petition. However, in the circumstances, since the

petitioner had withstood trial which has been vitiated on account of

trial being unsatisfactory, the petitioner cannot be tried again.

Therefore, the respondents cannot be permitted to try the petitioner

again.

47. Section 75 of BSF Act categorically prohibits a second trial.

Section 75 of the BSF Act is as under:-

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

48. In Banwari Lal Yadav (supra), a Division Bench of this Court

relied and considered the ratios of the cases in Civil Rule No.3236 (Writ

Petition)/73, Sukhen Kumar @ Chandra Baisya Vs. Commandant;

Basdeo Agarwalla v. King Emperor, AIR 1945 FC 16; Yusefalli Mulla

Noorbhoy Vs. R., AIR 1949 PC 264; Baijnath Prasad Tripathi v. The

State of Bhopal, 1957 SCR 650; Mohd. Safi v. State of West Bengal,

(1965) 3 SCC 467; CBI v. C. Nagrajan Swamy, (2005) 8 SCC 370 and

State of Goa v. Babu Thomas, (2005) 8 SCC 130 and had held that

there is distinction between the cases where the Court has no

jurisdiction to try the offence and where the trial ipso facto is

unsatisfactory. It was held that where the Court has no jurisdiction, a

delinquent can be tried again. However, if the trial is vitiated on account

of it being unsatisfactory, the delinquent or the accused cannot be tried

again. In para 13 of the said judgment the Court had held as under:-

"13. In our considered view, there is a clear distinction, albeit a fine one, between cases where a court has no jurisdiction to try the offence, as for example, if the court is not competent to try the offence for want of sanction for prosecuting the accused or if the composition of the court is not proper as required for that type of court or if the court is illegally constituted of unqualified officers, and cases where the trial ipso facto is unsatisfactory as for example if during the course of the trial, inadmissible evidence is admitted or admissible evidence is shut out or proper procedure is not followed and the trial is consequently marred by grave irregularities which operate to the prejudice of the accused. In the former category of cases the trial would be no nest, being null and void from its very inception. In other words, there would be no trial in the eyes of law. In the latter category of cases, however, in our view, it would be deemed that the accused has withstood the trial and as such he cannot be tried again."

The Court had held that de novo trial cannot be initiated in cases

where the trial was initiated before a competent Court vested with

jurisdiction to conduct the trial, however, where subsequently the trial

was vitiated on account of procedural or other grave irregularity

committed in the conduct of the trial, the delinquent could not be tried

again.

49. In Banwari Lal Yadav (supra) relied on by the petitioner, the

accused had allegedly pleaded guilty to the charges in his statement for

mitigation of sentence where he had stated that his mental condition

was not proper. It was held that keeping in view the said statement of

the accused, the Court would have been well advised to alter the plea of

„guilty‟ of the petitioner to „not guilty‟ and the Court having not done so,

the proceedings were vitiated under Rule 143 (4) of the BSF Rules. This

was also upheld in this case by the Appellate Authority.

50. Considering the object and intent of Section 75 of BSF Act which

clearly prohibits the second trial of the accused, it was held that the

second trial was not permitted. The Court in para 21, 22, 23 and 24 of

the said judgment had held as under:-

"21. Keeping in view the aforesaid position of law, we are of the considered view that the question as to whether a fresh trial or de-novo trial can be initiated against the accused would depend upon the reason for the setting aside of the earlier trial. There are clearly two kinds of cases (1) where the earlier trial was void ab initio in the eyes of law having been initiated by a court inherently lacking in jurisdiction to conduct the trial to which reference has been made hereinabove and (2) where the trial was initiated before a competent court vested with jurisdiction to conduct the trial, but Subsequently the trial was vitiated on account of procedural or other grave irregularity committed in the conduct of the trial. The present case is clearly a case of the second type where the conviction is quashed not for want of inherent jurisdiction in the court, but because the trial was unsatisfactorily conducted. The petitioner who

had earlier pleaded guilty to the charge, in his statement for mitigation of sentence stated that his mental condition was not proper and, therefore, the offence committed by him had been intentionally committed. Keeping in view the said statement of the petitioner and the provisions of Rule 143(4) read with Rule 161(1) of the BSF Rules, the court would have been well advised to alter the plea of Guilty of the petitioner to Not Guilty. The court not having done so, the proceedings were hit by the provisions of Rule 143(4) of the BSF Rules and the Appellate Authority, being the Dy. Inspector General, rightly concluded that the injustice had been done to the petitioner by reason of the grave irregularity in the proceedings. The petitioner accordingly was allowed to join back his duties and the sentence of his dismissal from service was set aside. So far, the order of Dy. Inspector General possibly cannot be faulted. What, however, followed was the second trial of the petitioner and this, to our mind, keeping in view the embargo imposed by Section 75 of the BSF Act and Article 20 of the Constitution of India was clearly impermissible.

22. The object and intent of Section 75 which has been incorporated in the BSF Act is clearly to prohibit a second trial of the accused, whether by the Security Force Court or by a criminal court, in all cases where the accused has been convicted or acquitted of an offence by a Security Force Court or by a criminal court or has been dealt with under Section 53 or Section 55. Section 75 consequently imposes a bar on second trial where the first trial was by a court of competent jurisdiction, though not where the first trial was void ab initio.

23. We are fortified in coming to above conclusion from Section 161 of the BSF Act which provides as under:

161. Action by the Deputy Inspector General- (1) Where the Deputy Inspector General to whom the proceedings of a Summary Security Force Court have been forwarded under Rule 160, is satisfied that injustice has been done to the accused by reason of

any grave irregularity in the proceedings or otherwise, he may, (a) set aside the proceedings of the court; or (b) reduce the sentence or commute the punishment awarded to one lower in the scale of punishment given in Section 48 and return it to the unit of the accused for promulgation.

24. A bare glance at the provisions of the aforesaid section shows that what is envisaged is the setting aside of proceedings by the Deputy Inspector General where grave irregularity has been committed by a Summary Security Force Court, thereby causing injustice to the accused. The provisions of the said section do not envisage the setting aside of the proceedings in a case where the court had no jurisdiction in the first place to deal with the matter, as for example where the court was illegally constituted or incompetent to deal with the matter on account of want of sanction by the competent authority or otherwise. The trial initiated by such a court against the accused would be no nest in the eyes of law, and quite obviously cannot stand in the way of initiation of de-novo trial."

Therefore, in the facts and circumstances and for the foregoing

reasons, the petitioner cannot be tried de-novo after his sentence based

on his alleged plea of `Guilty‟ has been set aside.

51. The learned counsel for the respondents has also contended that

since the SSFC proceedings have been held to be vitiated and he is not

to be tried again but he should not be granted full back wages. Reliance

in this regard has been placed on K.K. Synthetics Ltd. v. K. P. Agrawal

& Anr. (2007)2 SCC 433. However perusal of the case reveals that the

facts of the same are clearly distinguishable from the facts of the

present matter. In the said case the difference between "misconduct

reinstatement" and illegal termination was clarified. It was held that

misconduct reinstatement refers to reinstatement in cases of proved

and affirmed misconduct where the punishment of dismissal is

substituted by some lesser punishment. Therefore it was held that in

case of "misconduct reinstatement" the Court cannot hold the employer

responsible and thus back wages cannot follow as a necessary

consequence of such reinstatement. However, as held hereinbefore, the

respondents have failed in proving either of the two charges imputed

against the petitioner and thus, the present matter does not fall within

the purview of "misconduct reinstatement". Therefore, denying the

petitioner full back wages on reinstatement for no fault of his or in light

of unproved charges would be not permissible.

52. In the totality of the facts and circumstances and for the foregoing

reasons, the writ petition is allowed and the trial by the SSFC based on

the alleged plea of `Guilty‟ and consequent sentence awarded by the

SSFC to the petitioner by order dated 27.2.1998 is set aside. The order

of dismissal dated 27.2.1998 passed against the petitioner is quashed

and consequently, the petitioner shall be entitled for reinstatement

forthwith. The petitioner be therefore, reinstated forthwith. The

petitioner shall be entitled for full back wages from the date of his

dismissal till his reinstatement and all other consequential benefits

including promotions in the mean time. In the circumstances,

petitioner is also awarded a costs of Rs.10,000/- against the

respondents. Costs awarded by this Court be paid within four weeks.

With these directions and observations, the writ petition is allowed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY      14, 2012
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