Delhi High Court

Constable Vipin Kumar vs Union Of India & Ors. on 17 May, 2012

Author: Anil Kumar

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Date of Decision: 17.5.2012

+                     W.P.(C) No.7312/2011

Constable Vipin Kumar                                ...      Petitioner

                                  Versus

Union of India & Ors.                                ...      Respondents


Advocates who appeared in this case:

For the Petitioner         : Mr. M.G.Kapoor
For Respondents            : Mr.Jatan Singh & Mr.Tushar Singh

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

ANIL KUMAR, J.

1. The petitioner has sought the quashing of the SSFC

proceedings, findings and sentence dated 25th September, 2010 and

order dated 11th August, 2011 rejecting the statutory petition dated

21st March, 2011 filed by the petitioner. The petitioner has also

sought his reinstatement with full back wages.

2. Relevant facts for comprehending the controversies are that

the petitioner was appointed as Constable (GD) on 15th January,

2003 after which he had undergone training at STC BSF, Kharkan

Camp (Punjab). After the completion of his training, the petitioner

was posted to 193 Bn., BSF w.e.f. 11th December, 2003. The

petitioner was thereafter sent to SHQ BSF CI (Ops) Manipur for his

permanent posting. The petitioner again joined 193 Bn on 24th

March, 2009 and served at various locations.

3. During his posting, the petitioner was granted 23 days Earned

Leave from 7th May, 2009 to 29th May, 2009 with permission to avail

three days JP w.e.f. 30th May, 2009 to 1st June, 2009 from Tac

Headquarter (HQ), 193 Bn BSF, Komkeirap (Manipur), when the

petitioner's unit was deployed on CI Role duty in Manipur State. The

petitioner had availed the 23 days leave on account of his sister's

marriage.

4. The petitioner was required to join the duty on 1st June, 2009,

but he did not resume the duty on the said date and, therefore, a

registered Letter No.11641-42 dated 07.06.2009 was issued to the

petitioner directing him to join the duty forthwith.

5. The petitioner, by letter dated 4th June, 2009 intimated the

authorities, that on account of his medical condition, he should be

granted one month's earned leave. The said letter was received by the

Unit on 12th June, 2009. However, along with his application dated

4th June, 2009, the petitioner did not send any medical certificate

stipulating the ailment which he had been suffering at that time.

6. The leave for one month sought by the petitioner was not

granted and he was intimated by letter no.12411-12 dated

16.06.2009 about it. Another registered Letter No.13044-45 dated

28.06.2009 was sent at petitioner's home address, intimating him

that his leave has not been sanctioned and that he should join the

duty.

7. The petitioner, however, did not rejoin the duty. The petitioner

contends that towards the expiry of his leave, he had fallen sick, and

that he was having fever and suffering from nausea and loss of

appetite. Since his conditions had not improved, he went to Diwan

Shatrughan Singh United District (Male) Hospital, Hamirpur (UP) as

an OPD patient on 3rd June, 2009. There the petitioner was

diagnosed with having contracted Gastritis and Hepatitis and he was

advised ‗bed rest' for 2 ½ weeks. The petitioner thereafter, visited the

Hospital on 20th June, 2009, 15th July, 2009, 7th August, 2009 and

24th August, 2009. On 20th June, 2009, the petitioner was further

advised ‗bed rest' for 3 ½ weeks; on 15th July, 2009 he was again

advised ‗bed rest' for a further period of 3½ weeks and on 7th August,

2009 he was advised ‗bed rest' for a further period of 2 ½ weeks.

Thereafter, the petitioner was declared fit to resume duty. The

petitioner also disclosed that the validity of the OPD Card was only

for 15 days, therefore, on each visit a fresh OPD Card was made.

The petitioner further contended that as per the prevalent practice in

the Hospital, the petitioner had to sign on the OPD Card in the

presence of the doctor and the doctor attending the patient also used

to counter sign the OPD card for the verification of the patient's

signature.

8. The request of the petitioner for extension of one month's leave

by his letter dated 4th June, 2009 was not accepted without

disclosing any reason, rather a Court of Inquiry (COI) was ordered by

order dated 5th July, 2009 to investigate the matter of over staying

the leave by the petitioner. Pursuant to the COI, it was decided that

the petitioner be dealt with as per the provisions of the BSF Act and

Rules. On the basis of the final remarks of the Commandant on the

COI, an apprehension roll under the provisions of Sections 60 & 61

of the BSF Act, 1968 was issued to the Superintendent of Police,

District Hamirpur (UP) by letter dated 13th July, 2009 to apprehend

the petitioner. However, the petitioner was not apprehended and

therefore, a show cause notice dated 6th August, 2009 was issued to

the petitioner.

9. Thereafter, the petitioner visited the Hospital on 25th August,

2009 for obtaining the certificate regarding his treatment. According

to him, he had signed two copies of the certificate. One copy was to

be given to the petitioner and the second copy was to be retained in

the Hospital record. The petitioner disclosed that since the medical

officer was not available, the dealing clerk told him that he could

collect the certificate on a later date. However, the petitioner had

signed the copies of the certificate. When he had signed the

certificates, they were undated as the Chief Medical Officer was not

available. The petitioner, thereafter reported and rejoined the duty on

27th August, 2009 at the RTO BSF, Dimapur. On the arrival of the

petitioner, he was allegedly produced before the Commandant, who

demanded an explanation and ordered the preparation of the ―Record

of Evidence‖ ROE. The ROE submitted its proceedings on 15th

September, 2009.

10. According to the petitioner, when he had voluntarily reported

for duty on 27th August, 2009, he was marched up before Sh. Jameel

Ahmad, the Commandant and he had tried to explain to the

Commandant that he had contracted jaundice and that he was

undergoing treatment for the same in a Govt. Hospital. The petitioner

had also produced the OPD Card bearing his signature and the

signature of the concerned doctor who had attended to him at that

time. As per the practice of the concerned Hospital, the OPD Card

was valid for 15 days and was to be signed by the patient and

counter signed by the doctor. The petitioner also contended that he

had informed his Commandant that the medical certificate had been

left behind in the Hospital, as the day he had gone to procure the

medical certificate, he could not procure the same as the Chief

Medical Officer was not present to sign it.

11. The petitioner further disclosed that since an ROE was ordered

against him, therefore, he obtained the certificate through his

relative, a maternal uncle, Sh. Dhani Ram Pal who visited the

Hospital on 5th September, 2009. The uncle of the petitioner

deposited Rs. 68 towards the fees for obtaining the certificate by

receipt No.26855 dated 5th September, 2009 and a copy of the said

certificate was duly faxed to the petitioner by his uncle.

12. The petitioner contended that the Commandant had doubt

regarding the date of the certificate, and therefore, he asked the

petitioner to obtain the certificate with the correct date. Consequent

to this, the petitioner requested his uncle to go to the hospital again

and apprise the dealing clerk of the anomaly. The dealing clerk,

therefore, corrected the date by overwriting on the date of 5th

September, 2009 and putting the date as 25th August, 2009, as well

as stipulating the same date at two additional places. The petitioner,

thereafter received the corrected certificate from his uncle by speed

post on 28th October, 2009. According to the petitioner, with the

certificate dated 25th August, 2009, the Commandant was satisfied

and the charges were dropped against the petitioner and no follow up

action was taken by the then Commandant, Sh. Jameel Ahmad.

13. However, thereafter, there was a change of guard and Sh.

Neeraj Dube took over as Commandant of 193 Bn in December, 2009

i.e. three months after recording of the ROE and his Unit moved from

Nagaland to Ranbir Sing Pura in Jammu in May, 2010.

14. The plea of the petitioner is that the Jawans had been given a

raise in the Ration Money pursuant to the 6th Central Pay

Commission from Rs.1100/- to Rs,1300/-. The new Commandant,

however, decided to increase the contribution for the mess from the

Jawans by Rs.200/- retrospectively. The petitioner contended at that

time that he had raised this point in the Sainik Sammelan on 5th

September, 2010 that the increase should not be effected at all or at

least not retrospectively and in case the increase is effected then

extra money so received should be spent on the welfare of the

Jawans by providing more amenities.

15. The petitioner disclosed that this was not liked by the

Commandant Sh. Neeraj Dube who therefore, reopened his case and

directed the trial of the petitioner by the SSFC for over staying his

leave in 2009 from 30th May, 2009 to 26th August, 2009.

Subsequently, the petitioner was tried by the SSFC held on 25th

September, 2010. The petitioner had pleaded not guilty. Even though

the doctor at Diwan Shatrughan Singh Sanyukt Zila (Male) Hospital,

Hamirpur (UP) was not examined during the Record of Evidence,

however, during the SSFC he was summoned without notice to the

petitioner and without disclosing to the petitioner that he was

entitled to get the hearing adjourned so as to cross-examine him

properly. The SSFC ultimately held that the petitioner was guilty

and, therefore, sentenced him to be dismissed from service on 25th

September, 2010. The petitioner applied for the SSFC proceedings

and thereafter, filed a petition dated 21st March, 2011 under Section

117 of the BSF Act. The Director General, BSF, however, rejected the

statutory petition by order dated 11th August, 2011.

16. Aggrieved by the order of rejection of his statutory petition, the

petitioner has filed the above noted writ petition, inter-alia, on the

grounds that though the Commandant, Sh.Jameel Ahmad was

satisfied with the certificate produced by him, however, the

Commandant Sh. Neeraj Dube reopened the proceedings against him

as he had raised the issue of not changing the mess amount by

another Rs. 200/- retrospectively, in the Sainik Sammelan. The

petitioner contended that no satisfactory explanation has been given

by the respondents for ordering a SSFC after a lapse of more than

one year of the alleged offence and of recording of the ROE. The

petitioner further contended that the punishment of dismissal from

the service is disproportionate to the alleged offence. It was also

contended that since the doctor was not examined in the ROE,

during the trial by the SSFC, the petitioner at least ought to have

been given the notice for the examination of the said doctor and

should also have been communicated to exercise his right to get the

recording of the cross-examination adjourned so that the petitioner

could cross-examine the said doctor properly. The petitioner also

challenged the SSFC proceedings on the ground that the OPD Cards

have not been considered, which bear the signatures of the petitioner

and the attending doctors. The plea has also been raised by the

petitioner that if there was any doubt regarding the signature of the

petitioner, the same could have been verified by getting an Expert to

verify the same on the various OPD Cards. It is asserted that the

certificate would not have had the petitioner's signature, if the

petitioner had not been treated in the said Hospital. The petitioner

also contended that since a doctor in the Govt. Hospital treats a

large number of patients who come in the OPD daily, therefore, if the

petitioner was not recognized by the doctor who had visited him after

13 months, no adverse inference in these circumstances could be

taken against the petitioner.

17. The petitioner contended that the examination of the doctor

P.K.Gupta, PW-4 in the SSFC was in clear violation of Rule 85 of the

BSF Rules, 1969, which is as under:-

"85. Additional witness. - Where the prosecutor intends to adduce evidence which is not contained in any record or abstract of evidence given to the accused notice of such intention together with the particulars of the evidence shall, when practicable, be given to the accused a reasonable time before the evidence is adduced. If such evidence is adduced without such notice or particulars having been given, the Court may, if the accused so desires adjourn after receiving the evidence or allow cross- examination arising out of that evidence to be postponed, and the Court shall inform the accused of his right to apply for such an adjournment or postponement."

18. The petitioner contended that neither any notice as

contemplated under the said rule was given, nor were the

proceedings adjourned, nor was the petitioner allowed to cross-

examine the said doctor. It is asserted that the testimony of such a

witness could not be considered in the facts and circumstances and

if the testimony of said witness is ignored, there is no evidence to

establish the charge against him and the entire SSFC proceedings

will be vitiated.

19. The writ petition is contested by the respondents contending,

inter-alia, that the ROE proceedings were concluded on 15th

September, 2009, however, the SSFC was held after a long gap of

time on 25th September, 2010 at the Headquarter 193 Bn, BSF,

R.S.Pura (Jammu) on account of the want of the original medical

documents from Constable Vipin Kumar and the verification of the

photocopies of the medical documents from the treating Hospital and

also for the reasons of summoning the civil witnesses for their

presence. The reason for the delay was also attributed to the

movement of 193 Bn from Komkeirap (Manipur) to Jiribam (Manipur)

and the further changeover of 193 Bn BSF from M&C Frontier to

Jammu Frontier and on account of the various other administrative,

as well as operational commitments. It was further contended that

another SSFC trial of the petitioner was also held on 6th October,

2009 for the offences committed by him under Sections 20(c), 20(b),

34(a) & 35(a) of the BSF Act, 1968 for which he was awarded the

punishment of 32 days of Rigorous Imprisonment in Force custody

and forfeiture of one year's service for the purpose of promotion.

20. The respondents further disclosed that the petitioner had

proceeded on 15 days CL w.e.f. 9th February, 2010 to 2nd March,

2010 and had reported only on 26th May, 2010 after over staying for

85 days, for which he was summarily tried under Section 19(b) of the

BSF Act, 1968 on 30th June, 2010 and was awarded 28 days

Rigorous Imprisonment in Force Custody, which RI was completed

on 27th July, 2010. Thereafter, the validity of the treating doctor was

confirmed and on receipt of the confirmation, the SSFC trial for the

offence committed in June, 2009 was fixed.

21. The respondents also gave details of the good and bad entries

against the petitioner, including OSL, AWL which were recognized

during the service of the petitioner. According to the respondents, the

petitioner's net qualifying service is as under:-

(a) Good Entry - 02 Nos. (IG-01 during 2007, C0-01 during 2007-08)

(b) Bad Entry - 02 Nos

(i) Major- 01(SSFC) --(i) To suffer 32 days RI in Force Custody By SSFC on 6.10.2009 U/s 35(a), 20(c) , 20(b) & 34(a). (ii) (To forfeit one year of service for the Purpose of promotion ( by SSFC under the charge of Sec-35(a), 20(c), 20(b) 34(a) on 06-10-2009)

(ii) Minor-01 - 28 days RI in Force Custody U/S-19 b on 30-06-2010 for 85 days OSL.

       (c)     Overstaying of Leave - 06 Times:

       (i)     45 days OSL (15 days CL + 24 days OSL) period w.e.f.

30.08.2005 to 13.10.2005 regularized by granting him 30 days EL w.e.f. 30-08-05 to 28-9-05 and 15 days HPL w.e.f. 299-05 to 13-10-05.

(ii) 46 days OSL period w.e.f. 26.3.2006 to 10.5.2006 regularized by Granting him 46 days HPL.

(iii) 34 days OSL (10 days CL + 23 days OSL) period w.e.f.

13.11.2006 to 16.12.2006 regularized by granting him 07 days EL w.e.f. 13-11-06 to 19-11-06, 18 days HPL w.e.f. 20-

1106 to 07-12-06 and 09 days EOL w.e.f. 08-12-06 to 16-12-

06.

(iv) 14 days OSL period w.e.f. 20.9.2007 to 03.10.2007 regularized by granting him 14 days EOL..

(v) 61 days OSL period w.e.f. 07.4.2007 to 07.6.2007 regularized by granting him 20 days HPL w.e.f. 07-04-07 to 26-04-07 and 41 days EOL w.e.f. 27-04-07 to 07-06-07.

(vi) 59 days OSL period w.e.f. 05.6.2008 to 02.8.2008 regularized by granting him 59 days EOL.

(d) Absent Without Leave - 01 Time.

       (i)    89 days AWL w.e.f 12.12.2008 to 10.03.2009 regularized
              by granting him 89 days EOL

       (e)     EXTENSION          - 01 Time.

10 days HPL w.e.f. 18.4.2008 to 27.4.2008. 20 days EOL w.e.f. 28-04-2008 to 17-05-2008 extended in continuation of 30 days EL w.e.f. 19-03-2008 to 17-04-2008 earlier sanctioned.

(f) Net qualifying service- Total 07 years 08 months 11 days (-) Dies Non period of 438 days i.e. 14 months &13 days = 01 year, 02 months and 13 days.‖

22. The respondents also produced the extract of the Sainik

Sammelan for the month of September, 2010 to contend that the

plea as alleged by the petitioner was not raised in the said Sainik

Sammelan.

23. Since the allegations were made against the Commandant, Sh.

Neeraj Dube, he was also impleaded as respondent No.3 by the

petitioner. Respondent No.3, however, did not file any reply to the

show cause notice and did not refute the categorical allegations

made against him.

24. The petitioner refuted the allegations made in the reply to the

show cause notice/counter affidavit dated 28th January, 2012 filed

on behalf of the respondents and contended that the respondents

have detailed his over stay of leave and absence without leave, with a

view to cause prejudice against the petitioner because even as per

SSFC record, since the petitioner's enrolment he had only received

two punishments which were also regularized for absence and over

stay, which are as under:-

02 Nos:-

       (i) U/s-35(a),                -32 days RI and forfeit
       20(c), 20(b)                        01 yrs service for the
       & 34 (a) (SSFC)               purpose of promotion -
                                     on 06.10.09

       (ii) U/S- 19(b)-              28 days RI-
                                     on 30.06.10‖

25. The petitioner contended that since his over stay had been

regularized on account of sufficient cause, the respondents have

detailed the same with a view to create a bias against the petitioner.

According to the petitioner, the SSFC on 6th October, 2009 had only

awarded 32 days RI in Force custody and forfeiture of one year's

service for the purpose of promotion. The summary of the entries in

the default sheet of the petitioner were as under:-

WITHIN LAST 12 MONTHS             SINCE                ENROLEMENT
  (i) U/s-35(a), 20(c), 20(b) & APPOINTMENT
          34                      02 Nos:-
      (a)(SSFC)- 32 days RI and      (i) U/s-35(a), 20(c), 20(b) & 34
       forfeit 01 yrs service for            (a)
  the                                     (SSFC)    -32 days RI and
       purpose of promotion -        forfeit
  on                                      01 yrs service for       the
       06.10.09                      purpose
                                          of promotion - on 06.10.09
  (ii) U/S- 19(b)- 28 days RI
       on 30.06.10                   (ii) U/S- 19(b)- 28 days RI-
                                          on 30.06.10

The petitioner contended that he is at presently undergoing no

sentence. That irrespective of this trial his character has been

satisfactory.

That his age is 28 years 08 month as on 25.09.2010.

That his service is 07 years 08 months and 11 days as on 25.09.2010.

That he has been put in arrest from 24-09-2010 till completion of the trial.

That he is in possession of following decorations and rewards:-

                Decoration                     Nil



               Reward DIG                     Nil

               Rewards CO                 01‖

26. The petitioner also challenged the verdict of ‗guilty' and

sentence of dismissal from service of the SSFC, inter-alia, on the

grounds that the petitioner was held guilty due to the ill will and

vengeance and mala fides on the part of the Commandant,

respondent No.3 on account of the fact that the petitioner had raised

the point of extra ration money not to be taken retrospectively from

the jawan at the Sainik Sammelan and he had also sought the

expenditure of the extra ration money on the welfare of the Jawans.

The case of absence without leave in June, 2009 was therefore, re-

opened and the SSFC was ordered after a lapse of more than one

year after recording of ROE, though for absence on another occasion

another SSFC was held on 30.6.2010. The punishment awarded to

the petitioner and entire SSFC proceedings are also challenged on

the ground that the doctor's evidence was not taken in ―ROE‖,

however, he was examined in violation of Rule 85 of the BSF Rules,

1969 and the punishment imposed on the petitioner is

disproportionate to his offence of over staying on account of suffering

from infective hepatitis.

27. The petitioner emphasized that the oral testimony of the doctor

does not negate the fact that he was suffering from infective hepatitis

in view of the documentary evidence produced before the SSFC

which has been practically ignored. It is also alleged that the

respondents have not considered the OPD cards which were issued

to the petitioner on 3rd June, 2009, 20th June, 2009, 15th July, 2009,

7th August, 2009 and 24th August, 2009. All the OPD cards bear the

signature of the petitioner and are also counter signed by the

concerned doctor. These OPD cards have not been denied by the

doctor, who was produced by the respondents. In order to ascertain

whether the petitioner was sick or not and had suffered from

infective hepatitis, it is urged that the respondents ought to have

verified these OPD cards which were produced by the petitioner and

the same ought not to have been negated merely, on account of the

oral statement of the doctor, stating that he does not recognize the

petitioner. According to the petitioner, the reason why the doctor

might not have recognized him might be since he had seen him after

considerable time had passed since he last met the doctor, and the

fact that a doctor has to be deal with several patients in the OPD and

it may not be possible for the doctor to remember all of them. The

petitioner contended that the documents are genuine i.e. the OPD

cards and therefore, the fact that the petitioner had suffered infective

hepatitis is established. In order to ascertain the genuiness of the

OPD cards of the various dates which were counter signed by the

concerned doctor, the petitioner contended that the respondents

ought to have ascertained the genuiness of the signature of the

petitioner by taking his specimen signatures and getting them

compared. It is also urged that the doctor who appeared as witness

did not deny that the signatures of doctors on various OPD cards

were not genuine or that the cards were not issued by the concerned

hospital.

28. The petitioner has also challenged his dismissal on the ground

that the respondents failed to appreciate that the OPD cards bear

signature of the attending doctor at two places, i.e. one at the end of

each OPD cards also besides the petitioner's signature in token of

endorsing his presence. These facts have not been considered by the

respondents and in case the commandant had any doubt about the

signature of the petitioner, he should have got them verified. The

petitioner contended that the OPD card would not have had his

signature had he not been treated in the hospital. In the

circumstances, the petitioner has asserted that there was sufficient

cause for him to overstay leave and the charge under Section 19 (b)

is not made out at all so as to hold him guilty and dismiss him from

the service.

29. The petitioner also emphasized that the SSFC is meant for fast

disposal of minor offences and a period of 13 months cannot be

called as fast disposal. In the circumstances, it is asserted that the

SSFC was constituted by respondent No.3 with a view to settle scores

with him as he had objected to the mess charges recovered from the

BSF personnel retrospectively. It is also urged that the plea by the

respondents that the SSFC could not be conducted earlier on

account of administrative and operational commitments is vague and

is attempt to skirt the whole issue. If the respondents could hold the

SSFC for another period of absence on 30.6.2010 there was no

reason not to hold the SSFC for his absence in June, 2009 earlier.

The petitioner also contended that neither the relevant facts

pertaining to administrative reasons had been disclosed, nor any

such facts had been established during SSFC proceeding. On

account of specific plea of the petitioner regarding mala fides of the

respondent no.3, the respondents ought to have disclosed the alleged

facts regarding alleged administrative and operational reasons which

had led to the delay.

30. Learned counsel for the petitioner has relied on Sh.Ravinder

Singh v. Union of India & Ors., MANU/DE0197/2002 to contend

that this Court should exercise its jurisdiction under Article 226 of

the Constitution of India as the decision of the respondents suffer

from unreasonableness. The counsel contended that the punishment

imposed upon the petitioner is also disproportionate. He contended

that it has been established on record that the petitioner overstayed

leave on account of having contacted infective hepatitis. Therefore,

considering the fact that he was about 27 years of age, the quantum

of punishment is too harsh and disproportionate. Reliance has also

been placed on Ex. LN Vishav Priya Singh v. Union of India & Ors.,

MANU/DE/0108/2008 to contend that SSFC in the facts and

circumstances should not have been convened. Reliance has also

been placed on Ranjit Thakur v. Union of India & Ors., AIR 1987

SCC 2386 to contend that procedural safeguard should

commensurate with the gravity of the misconduct and that any

penalty in disproportion to the gravity of the misconduct, would be

violative of Article 14 of the Constitution and that with wider powers,

there is great need for restraint in the exercise of such powers by the

respondents. The learned counsel for the petitioner has also

contended that in case the punishment by the SSFC is set aside by

this Court, the respondents shall not be entitled to try the petitioner

afresh. Learned counsel in support of this contentions has relied on

Section 75 of the BSF Act, which stipulates that the petitioner

cannot be tried again and has also placed reliance on a decision of

the Division Bench of this Court in Banwari Lal Yadav v. Union of

India, 134 (2006) DLT 353.

31. The Learned counsel for the respondents have relied on Major

G.S.Sodhi v. Union of India, MANU/SE/0562/1991; Ajit Jain v.

National insurance Co.Ltd. & Ors., (2002) 10 SCC 580 & Subhash

Chander (Ex.Naik) v. Union of India & Ors., 152 (2008) DLT 611 in

order to contend that in case this Court sets aside the verdict of

guilty and sentence of dismissal awarded to the petitioner, then this

Court should permit the respondents to try the petitioner, from the

stage that the proceedings have vitiated.

32. This Court has heard both the parties and has also perused

the documents filed with the writ petition, as well as the counter

affidavit and the rejoinder. The Court has also perused record of the

SSFC trial proceedings produced by the respondents. The learned

counsel for the petitioner has primarily contended that the only

evidence that goes against the petitioner in the record is the

statement of the Doctor, PW-4, who did not recognize the petitioner

as the patient he had treated. However, the said deposition is not to

be considered as PW-4 was not examined during the ROE and that

he was called to be examined during the SSFC Trial proceedings as

additional evidence without giving notice to the petitioner so that the

petitioner could cross examine him later, or even an opportunity to

adjourn the proceedings, therefore, being in complete violation of

Section 85 of the BSF Act and gravely prejudiced the petitioner.

33. Perusal of the statement of the Doctor, P.K. Gupta, PW-4,

reveals that he had stated that he had treated a patient, named,

Vipin Kumar, but he did not recognize the petitioner. The basis for

the statement given by the said witness is that none of the OPD slips

had any endorsements of a Constable Vipin Kumar but instead it

was only signed as Vipin Kumar while the petitioner was a constable.

The explanation given by the said witness is illogical and not

acceptable. If a person has to sign an OPD card he will not sign a

prefix before his signatures, specifying his designation. If the name of

the petitioner is Vipin Kumar, then he would sign as Vipin Kumar. It

cannot be expected that in his signatures which were in Hindi, he

would have written Constable Vipin Kumar. The OPD cards had been

produced before the SSFC by PW3 and exhibited as RW 6 to 11. The

original certificates were stated to be received on 28.10.2009 and

were entered into dak register at Sr. No. 2773 which were

i. OPD slip no. 43289 dated 3.6.2009

ii. OPD slip no. 67081 dated 7.8.2009

iii. OPD slip no. 74052 dated 24.8.2009

iv. OPD slip no. 57881 dated 15.7.2009

v. OPD slip no. 49460 dated 20.6.2009

34. The other documents which were entered at said dak register

were New Sachan Medical Store Cash Memo No. 396 and Medical

Certificate issued by CMO District Hosp Hamirpur (UP) dated

25.8.2009. All these certificates bear the signatures of ‗Vipin Kumar'.

The said witness as PW-4 did not depose that the said OPD slips are

forged and not issued by Diwan Shatrughan Singh Combined Distt.

Hospital (Male) Hamirpur (UP). The least which was expected from

the said witness was to depose regarding the authority of the OPD

slips and whether the OPD cards were counter signed by him or not.

From the statement of the said witness, it is apparent that he has

not denied that the OPD cards were not issued by the Diwan

Shatrughan Singh Combined District (Male) Hospital, Hamirpur (UP).

The statement of the PW4, is as under:-

―PW NO. 4 (Fourth witness for prosecution)

I Dr. P K Gupta, Consultant and Physician at Diwan Shatrughan Singh Combined District Hospital (Male) Hamirpur (U P) having been duly affirmed States that:-

I, Dr. P K Gupta is performing the duties of Consultant and Physician at Diwan Shatrughan Singh Combined Distt Hospital (Male)Hamirpur ( U P). As per your office letter a clarification was asked whether I have treated Constable Vipin Kumar or not. I would like to clarify that although I have treated one namely Vipin Kumar but he was not from your Department / organization i.e. BSF. None of

the OPD slip has any endorsement as Constable Vipin Kumar, but Vipin Kumar only.

The person to whom I have treated has told that he was appointed in Police Department, Lucknow.

As per procedure, when fitness certificate is issued to a person he has to deposit a Govt. fee of Rs.68/- in hospital and obtain fitness certificate. In this context, it is clarified that your Constable Vipin Kumar on 5/9/09 ( date of issue of certificate ) was physically present in your Battalion and was serving at Manipur , as such he cannot be the person to be issued with the certificate.

The original certificate produced by Constable Vipin Kumar in the office of 19 Bn BSF on being. compared with the Photostat copy being produced by me, it is evident that the original certificate deposited with 193 Bn BSF by Constable Vipin Kumar has been forged and tempered by changing its date whereas correct date of issue was 5/9200. I hereby produce a photo copy of fitness certificate and official fee receipt to the Court. (Courts encloses the documents and marked as Annexure - R-12 & 13 respectively).

If the certificate of fitness would have been issued on 25/8/2009 then there would have not been cutting and if the certificate have been issued on 5/9/2009 there was no question of issuing a certificate with striking records as a fresh certificate is always issued without any cutting on the testimony. If Constable Vipin Kumar has been issued with a certificate of fitness on 25/8/09 then individual should be able to produce a money receipt as per procedure before obtaining the certificate, of Rs.68/- of the same date. While on the contrary, the certificate and the fee deposited receipt are of 5/9/09, a date on which he was present in his Battalion.

I also produce an attested copy of the revenue register of the hospital which clearly indicates that on 5/9/09 Shri Vipin Kumar of Police Department Lucknow has deposited a fee of Rs.68/- wide receipt No.26855 and subsequently he was issued with fitness certificate. I do not understand under what circumstances a person with the same name serving in your Battalion can obtain fitness certificate at Hamirpur Hospital. (The Court encloses the same and marked as Annexure - R- 14).‖

35. Perusal of the original record produced by the respondents

also reveals that the Commandant Jameel Ahmed had sent a detailed

communication dated 24.9.2009 to the Chief Medical Officer about

the difference in age between the OPD slip no. 43289 dated 3.6.2009

and other OPDs slips; how the medical certificate was issued to the

petitioner in contravention of Medical rules and ethics without

constituting a Board of Doctors and why was he not referred to

higher level of Medical care/Hospital, how the petitioner was given IV

fluid of 02 bottle and in the circumstances, he should have been

admitted to the Hospital and whether he had been issued any

medicine from the hospital and whether he was kept under the

treatment of only one doctor and he was also directed either to

appear as witness on 24.10.2009 or to send the reply so as to reach

before 13.10.2009 when the Court had to re-assemble.

36. The Chief Medical Officer had sent a reply dated 7th October,

2009 to Commandant Jameel Ahmed stating that the petitioner was

treated by Dr. P.K.Gupta and medical rest was recommended to him

from 3.6.2009 to 24.8.2009. He also stated that the medical

certificate was issued which was also signed by him but he could not

certify whether the said person was Vipin Kumar (petitioner) or

someone else but he had disclosed his name as `Vipin Kumar son of

Shri Devi Ram Resident of village Kunheta, District Hamirpur.

Another letter dated 7.10.2009 was also sent which was by Dr.

P.K.Gupta addressed to Chief Medical Officer. In the said letter Dr.

P.K.Gupta had disclosed that the difference in age between one OPD

slip and other OPD slips was because the age was entered as

disclosed by the person getting treatment at the registration counter.

He had stated that his treatment period was less than three months

therefore, the case was not referred to Medical Board, nor he felt the

need for it. In the letter dated 7.10.2009 Dr. P.K.Gupta had rather

stated that he cannot say with certainty that the person who had

come to him for treatment was ‗Vipin Kumar' or not but he had taken

his signatures on all the OPD slips. He had been provided all the

medicines and as he had the senior most physician therefore, there

was no need to refer him to any other Doctor.

37. Thus in order to ascertain whether the petitioner had got

himself treated at the medical centre or someone else, the only thing

required was to get the signatures of the petitioner compared with

the signatures which were on OPD slips. In the circumstances, if Dr.

Gupta did not recognize the petitioner, it could not be inferred that

the person who had signed the OPD slips was not the petitioner. The

Chief Medical Officer had also sent photocopies of the register in

which the OPD slips were entered counter signed by the person in

whose name the OPD slips were issued. Had the petitioner been

impersonated by someone else before the District Hospital, the

signatures of the petitioner could be compared with the signatures

which had appeared in the registers of the District Hospital. In the

circumstances, on the basis of the evidence which had been

produced before the SSFC without getting the signatures of the

petitioner with the signatures which had been on the OPD slips and

even on the medical certificate, it could not be held that the OPD

slips and the medical certificate do not bear the signatures of the

petitioner. The reasoning and the findings of the SSFC are

apparently perverse and cannot be sustained in the facts and

circumstances.

38. The petitioner has also contended that Rule 85 of the BSF

rules was not complied with regard to PW-4 and therefore, the SSFC

proceedings and the punishment awarded to the petitioner has been

vitiated. The respondents have repelled the plea of the petitioner on

the ground that Rule 85 does not apply to the SSFC proceedings.

This has not been denied by the respondents, that the doctor

P.K.Gupta, PW-4 was not examined by the respondents during the

ROE. This is also not disputed and cannot be disputed that the

statement of doctor P.K.Gupta could not have been given to the

petitioner earlier as he was not examined. It is also not denied that

the copies of letter dated 7.10.2009 from the Chief Medical Officer

and the copy of letter dated 7.10.2009 by Dr. Gupta addressed to the

Chief Medical Officer were not given to the petitioner. If that be so,

then in compliance with Rule 85, if the statement of Dr. Gupta which

was not adduced during ROE, then before recording the statement of

such a witness, the notice of the same ought to have been given to

the accused. The object of the said rule is salutary so that

compliance of the principles of natural justice is ensured and to

make certain that any person may not be taken unaware and may be

given the opportunity to put his version to impeach the testimony of

such witness whose evidence has not been adduced earlier. Rule 85

further contemplates that if the accused so desires, the statement of

such a witness whose evidence is not recorded earlier, may be

adjourned for the cross examination after receiving the evidence of

such an additional witness. The rule, therefore, not only puts an

obligation on the respondents to give a notice of adducing evidence of

such a witness, but also mandates that in case such additional

evidence is recorded, the cross-examination by the accused or on his

behalf be deferred at the instance of the accused, and the accused

should be made aware of his right to apply for such an adjournment

or postponement. The intent behind the said provision is clearly to

provide a reasonable opportunity to the charged officer to be aware of

the evidence against him, so as to enable him to substantially defend

himself. The action of the respondents completely fails on all these

counts. As is evident from the record, the notice was not given to the

petitioner regarding the examination of PW-4, and the evidence was

adduced almost after 13 months after the ROE was completed, in

which the doctor P.K.Gupta was not examined. Also the petitioner

was not even informed that he has the right to get the cross-

examination deferred, nor was the cross-examination deferred.

Perusal of the SSFC proceedings reveals that in these circumstances,

the petitioner had declined to cross-examine the witnesses and thus,

it was incumbent upon the respondents to have explained to the

petitioner that he had the right to have the cross-examination

deferred instead of stipulating that the statement has been read over

to the accused in the language he understands i.e. Hindi and that

the provision of BSF Rule 90 has been complied with. In these

circumstances, how Rule 85 has been complied with, has not even

been explained. Recording of the statement of doctor P.K.Gupta is

thus, in violation of the statutory Rule 85 and if a right to cross-

examination has been denied to the petitioner, the necessary

consequence is that the statement of such a witness cannot be

considered by the respondents to arrive at the verdict of guilty. If the

statement of PW4 is to be ignored then there is no evidence to

inculpate the guilt of the petitioner, in respect of the charge framed

against him that he had overstayed his leave without any sufficient

cause. The remaining evidence, especially the statement of PW3

rather establishes that the OPD slips and a medical certificate

regarding the petitioner had been produced pursuant to the

clarification from the District Hospital, Diwan Shatrughan Singh

Combined District (Male) Hospital, Hamirpur (UP).

39. The plea of the respondents that the Rule 85 does not apply to

the SSFC proceedings, also cannot be accepted. If Rule 85 does not

apply to the SSFC than under which rule the SSFC could adduce the

additional evidence. There is no other rule which deals with adducing

of additional evidence. If the said rule does not apply and they are

being no other rule for adducing additional evidence, the SSFC could

not adduce the additional evidence. In that case also the evidence of

PW4 cannot be considered. Careful consideration of the rules

pertaining to the SSFC proceedings under Chapter XI reveal that the

only provision dealing with the evidence of witnesses is Rule 147

which provides that rules 88, 89 and 90 shall apply to the evidence

of witnesses at Summary Security Force Court as it applies to the

evidence of witnesses at a General or Petty Security Force Court.

However, there is no specific provision under Chapter XI for

adducing the evidence of additional witnesses. The evidence of

additional witnesses is provided for only under Rule 85 and there is

nothing in the rules that bar the applicability of Rule 85 which is

provided under Chapter IX titled as ―Procedure for Security Force

Courts‖. Since the intent behind Rule 85 is clearly to provide a

reasonable opportunity for the Charged Officer to be aware of the

evidence procured against him, from a witnesses who has not been

examined in the earlier proceedings, so as to enable him to properly

defend himself, this Court does not find any reason for not applying

this safeguard in the proceedings of the SSFC as well, as it is in

consonance with the principles of natural justice. In any case,

Section 64 of the BSF Act, 1968 specifies the Summary Security

Force Court as a type of Security Force Court, therefore if the

provisions of Chapter IX can be relied on for the other aspect of the

evidence of witnesses, then the same too can be relied on, for the

purposes of examination of additional witnesses. If the additional

evidence can be taken by the SSFC, then the only provision is Rule

85. In the circumstances, the respondents cannot contend that the

said Rule is not applicable to the SSFC.

40. The other reason which appears to have weighed with the

SSFC to hold the petitioner ‗guilty' is that the date on the original

certificate had been changed and thus, allegedly forged from the 5th

September, 2009 to 25th August, 2009. The respondents also have

relied on the deposition of PW-4 whereby he had deposed that as per

the record the fee for the medical certificate alleged to be tampered

was deposited on 5th September, 2009. It is evident that the

petitioner on the said date was present at his post in Manipur. PW-4

had also stated that if the certificate of fitness would have been

issued on 25/8/2009 then there would have not been any cutting

and if the certificate had been issued on 5/9/2009 there was no

question of issuing a certificate with changed date, as a fresh

certificate is always issued without any cutting. It was also asserted

by PW-4 that if the petitioner had been issued with a certificate of

fitness on 25.8.2009 then he should be able to produce a money

receipt as per procedure before obtaining the certificate, of Rs.68/- of

the same date. On the contrary, the certificate and the fee deposit

receipt are of 5.9.2009, a date on which he was present in his

Battalion.

41. This has been sufficiently explained by the petitioner in his

statutory petition, as well as in the present writ petition. According to

the petitioner, before leaving his home town for joining the unit, the

petitioner had visited the hospital on 25th August, 2009 for obtaining

the Certificate of his treatment at the hospital. At that time he had

signed on two copies of the ‗Certificate', one copy was to be given to

the petitioner and the second copy for the hospital's record. But

since the Chief Medical Officer was not available at that time,

therefore, the dealing clerk had told the petitioner that he would

have to get the Certificate collected at a later date through someone

else. It was also submitted that at that time, the said certificates

were kept undated, since the Chief Medical Officer was not available

for signatures. Thereafter, when the petitioner had reported for duty

on 27th August, 2009 he was asked to explain the reason for

overstaying his leave and to also submit the medical documents

validating his treatment. Since the Commandant required the

certificate, though the OPD slips had been produced, the petitioner

had asked his relative to collect the same, which he did by depositing

Rs. 68/- on 5th September, 2009, which was thereafter faxed to the

petitioner. Thus this clearly explains how even though the petitioner

was present in his battalion, he still got the medical certificate from

the concerned hospital. This explanation given by the petitioner has

remained un-rebutted. The Doctor did not depose that on 25th

August, 2009, whether the concerned doctor was available or not.

The respondents should have also examined the concerned clerk who

got two certificates signed by the petitioner and also told him to get

the certificate collected from someone else. In any case, whether the

certificates are signed by the petitioner or not has not been

established and PW4 has not denied that the certificate are not

signed by the concerned person on behalf of the District Hospital.

Perusal of the record shows that the said certificate bears the

signatures of the petitioner. How the petitioner could have signed the

certificate, as he had already reported to the unit on 27th August,

2009. Another relevant reason is that the petitioner does not gain

anything by changing the date of the certificate. What is relevant is

that prior to 25th August, 2009, whether the petitioner was suffering

from Hepatitis or not. The evidence of PW4 could not be construed

against the petitioner in the facts and circumstances and does not

establish the charge against the petitioner.

42. The petitioner has further submitted that the Commandant,

Sh. Jameel Ahmad too was not satisfied with the genuiness of the

certificate at that time, since it was dated 5th September, 2009 which

is why the petitioner again asked his maternal uncle to obtain the

certificate with the correct date. Therefore, the uncle again went to

the dealing clerk for pointing out the said anomaly, after which the

dealing clerk had corrected the date on the certificate from 5th

September, 2009 to 25th August, 2009 and stipulated the same at

two additional places. The said corrected certificate was then showed

to the Commandant who was satisfied with the same and had

therefore, dropped the charges against the petitioner. Thereafter, the

case was reopened against the petitioner after 13 months by the new

Commandant, Neeraj Dube. This explanation on the part of the

petitioner is also believable in the facts and circumstances, since on

examining the certificate it is clear that the tampering alleged by the

respondents instead seems to be a clear correction of the date

specified on the certificate, since there is an evident cutting and an

attestation of the same by the dealing authority. Instead of wholly

rejecting the pleas of the petitioner it was incumbent on the

respondents to have examined the dealing clerk and the

Commandant Sh. Jameel Ahmad, who would have provided the

relevant facts.

43. The SSFC ought to have ascertained whether the contents of

the said certificate except for the date were correct or not. If the

dates on two certificates are different then in order to ascertain

whether there has been a forgery or not, it has to be shown as to how

the petitioner would have benefited by changing of the date from 5th

September, 2009 to 25th August, 2009. The certificate is pertaining

to the petitioner suffering from infective hepatitis from 3rd June,

2009 to 24th August, 2009 and he became fit for duty from 25th

August, 2009. So as long as it can be certified that the petitioner had

suffered from infective hepatitis from 3rd June, 2009 to 24th August,

2009, the change of date of the certificate from 5th September, 2009

to 25th August, 2009 does not benefit the petitioner in any manner.

It is evident that the respondents have not considered the version of

the petitioner and disposed off his petition by order dated 11th

August, 2011 in a mechanical manner without considering the

relevant pleas and contentions of the petitioner.

44. Regardless, in light of the reasonable explanation given by the

petitioner, which has not been rebutted, the certificate ought to have

been accepted by the respondents. The medical certificate on which

the date was changed was based on the OPD cards/prescriptions

which were issued to the petitioner. The OPD cards/prescription

have remain un-rebutted and in the circumstances, there is ample

evidence about the illness of the petitioner which could not be

ignored by the SSFC. Thus the medical documents submitted by the

petitioner had to be considered and the same amply justify the

reason for his overstaying the leave from 30th May, 2009 to 25th

August, 2009 as he was suffering from Infective Hepatitis. Therefore,

the punishment of dismissal in light of the sufficient cause for

overstaying the leave on the part of the petitioner is not justifiable

and misconduct on the part of the petitioner has not been

established and the petitioner could not be dismissed and he is

entitled to be reinstated.

45. The respondents have also failed to give any satisfactory

reason for holding the SSFC after 13 months. The petitioner

categorically asserted that the SSFC was ordered by the respondents

No.3 with a view to teach him a lesson, as he had objected to the

increase in the contribution to the mess charges from the force

personnel retrospectively, as it was only after the 6th Pay Commission

had increased the mess charges and not before that. Mere denial and

production of the minutes of the Sainik Sammelan would not absolve

the respondents of the averments made against them in order to

counter the plea of mala fide. In these facts and circumstances, the

affidavit of Mr. Neeraj Dube, Commandant ought to have been filed

by the respondents. Instead of an affidavit of respondent No.3, a

counter affidavit has been filed on behalf of the respondents by Sh.

Hardeep Singh, Dy. Inspector General. There are no averments made

even in the counter affidavit that Sh. Neeraj Dube, Commandant has

been apprised of the fact that specific allegations have been made

against him. The respondents, however, have skirted the whole issue

by simply denying that the facts which have been alleged by the

petitioner in support of his plea of mala fides against respondent

No.3 and by stating that he had, in fact, not raised any objection as

alleged by him as per the extracts of the Sainik Sammelan. Even if it

is established that such a fact was not raised in the Sainik

Sammelan, still the fact that the mess charges were claimed from the

force personnel retrospectively or not, would still remain. The

respondents in the counter affidavit has not denied that the mess

charges were recovered from the force personnel retrospectively and

no justification has been given as to how, the mess charges could be

recovered retrospectively prior to the date the enhanced amounts

were granted to the personnel by the 6th Pay Commission. Also the

plea of the respondents that the delay in convening the SSFC

proceedings was on account of want of original medical documents

and verification of the photocopies of the documents is to be rejected

since it is evident from the record that all the documents and the

clarifications for the same were received by 7th October, 2009 which

is when the letter from The Chief Medical Office and letter by Dr. P.K.

Gupta to the Chief Medical Officer was received by the Commandant

Jameel Ahmad regarding the genuineness of the OPD slips and

medical certificate submitted by the petitioner. In these

circumstances, why the SSFC proceedings were initiated only on 25th

September, 2010 i.e. after the lapse of almost one year has not been

explained.

46. While dealing with the power of judicial review, the power of

the High Court or Tribunals in judicial review relating to the

punishment imposed by the disciplinary authority, the Supreme

Court after considering the case law on the subject had held as

under. In B.C. Chaturvedi Vs Union of India, AIR 1996 SC 484 in

para 18 it was held as under:

―18. ........ If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.‖

The Supreme Court in para 22 also held as under:

―22...... The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.‖

47. The Supreme Court in U.P. State Road Transport Corporation

and Ors. v. Mahesh Kumar Mishra and Ors., (2000) ILLJ SC 1113

had held as under:

―8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned Counsel for the appellants, that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.‖

48. Therefore, in the present facts and circumstances, though the

petitioner had overstayed the leave granted to him, however, there

was sufficient cause for doing the same, as the petitioner was

suffering from Infective Hepatitis and pursuant to medical advice he

did not join duty. As there was sufficient cause for overstaying the

leave the same ought to have been regularized by the respondents,

instead of imposing an extreme punishment of dismissal.

49. For the forgoing reasons the charge imputed against the

petitioner has not been established by the respondents, and thus the

punishment of dismissal dated 25th September, 2010 is liable to be

quashed and the order dated 11th August, 2011 is also liable to be

set aside.

50. Since the punishment awarded to the petitioner is liable to be

set aside also on account of non compliance of Rule 85 of BSF Rules,

whether the respondents would be entitled to try the petitioner again

or not and whether the matter is to be remanded to the respondents.

This cannot be disputed by the respondents that the SSFC which

tried the petitioner and punished him with dismissal from service

was competent to try the petitioner and the Security Force Court did

not lack the jurisdiction to try him. 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. Since

the petitioner withstood trial which has been vitiated on account of

there being not sufficient evidence establishing the charge against

him and for violation of BSF Rules, the petitioner cannot be tried

again.

51. 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.‖

52. In Banwari Lal Yadav v. Union of India, 134 (2006) DLT 353, a

Division Bench of this Court relied and considered the ratio 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, an accused 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.‖

53. 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.‖

54. Therefore, 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 irregularity the accused is

acquitted of the charges against him. Therefore, in the facts and

circumstances and for the foregoing reasons, the petitioner cannot be

tried de-novo and the matter cannot be remanded to the respondents

to try the petitioner again.

55. For the foregoing reason, the writ petition is, therefore, allowed

and the orders of the respondents dismissing the petitioner are set

aside and the petitioner is directed to be reinstated with all

consequential benefits, arrears of pay and other benefits from the