W/C Jitender Kumar vs Uoi & Ors.
2012 Latest Caselaw 5221 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: 03rd September, 2012

+                         WP(C) 5631/2000

       W/C JITENDER KUMAR                                 ...Petitioner
                     Represented by:           Mr.Anil Gautam, Advocate.

                                    versus

       UOI & ORS.                                           ..Respondents

Represented by: Mr.Jagjit Singh, Adv. with Ms.Neetu Singh, Advocate.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J.(Oral)

1. The record of the Summary Security Force Court Trial has been perused by us, in which, pertaining to the arraignment, it stands recorded as under:-

Q.1 How say you No.93002750 Rank WC Name Jitender Kumar are you guilty or not guilty of the First Charge? Ans. I plead guilty of First Charge.

Q.2 Are you pleading guilty or not guilty of Second Charge? Ans. I plead guilty of the Second Charge also.

2. Signatures of the petitioner have not been obtained.

3. The petitioner denies having pleaded guilty.

4. It further stands recorded that when asked whether he wishes to make a statement, the petitioner responded:-

"I may be sent to home. I cannot serve in BSF any more."

5. Signatures of the petitioner under said alleged statement are not to be found.

6. The petitioner denies having ever made such a statement.

7. The record of the Summary Force Court Trial would reveal that the petitioner was charged for two offences, firstly for neglecting to obey a general order, in that, at 07:30 hours on March 02, 1997 he was found in an area declared out of bounds vide Order No.Estt./5 Bn/Order/96/7725-26 dated 13.5.1996 and secondly for being intoxicated.

8. The record would reveal that at the Record of Evidence, no such office order dated 13.05.1996 was produced or proved and thus the same was not before the Court when the trial took place.

9. The Record of Evidence would reveal that admittedly petitioner was sanctioned 60 days‟ leave on March 01, 1997 and on the day of the incident i.e. on March 02, 1997 when he was found in an out of bound area, the petitioner was on leave and how he happened to be in the said area may be extracted by us with reference to the statement made by the petitioner during Record of Evidence. The petitioner stated:-

"I joined 5 Bn BSF on 7 Nov 96 on permanent posting from STC BSF Hazaribagh and sub posted to HQ Coy of 5 Bn BSF and since then performing the duties of W/C/Cook at HQ 5 Bn BSF Gokulnagar. In the month of Feb/March 97, I was performing W/C duties in „A‟ Coy 5 Bn BSF (As trg coy) at HQ 5 Bn BSF Gokulnagar.

On 01.03.97 (AN) I took my leave certificate for 60 days E/leave from office of 5 Bn BSF Gokulnagar to proceed on leave on 02.03.97 by welfare bus. On 02.03.97 the welfare bus did not ply and I decided to proceed on leave by civil bus up to Guwahati from Gate No.2 Gokulnagar

bus stand/stop. I along with Cobbler Saral Rabidas left ORS barrack at about 0730 hrs (on 02.03.97) for gate No.2. I was having a bed holder and a bag with me. En route way to Gate No.2 (near Harishnagar villate), Cobler Saral Rabidas demanded Rs.100/- from me but I could spare Rs.20/- only to him. I gave him a note of Rs.100/- as I was not having change of Rs.20/- at that time. I told cobbler Saral Rabidas to return balance Rs.80/- and take Rs.20/- from the currency note of Rs.100/-. Cobbler Saral Rabidas had already consumed liquor since morning on the day. He entered in the house of Mrs.Geeta Devi r/o Harishnagar village and told me to wait. I am just coming back with change of Rs.100/- and will return the balance amount of Rs.80/-. The house of Mrs.Geeta Devi is outside of BSF Complex, the south side of type III quarters (newly constructed) and in front of Unit area. After a long time when Cobbler Rabidas did not return from the house of Mrs.Geeta Devi, I entered into her house. There I saw he was asking her for balance money but she was not turning up. I demanded Rs.80/- to return from him but he did not take care of it. Since I was in hurry to catch the bus for Guwahati via Agartala, I again insisted him to return Rs.80/- to me but he did not take notice of it and abused me. He picked up a wood from the stock of woods kept inside the presence of Mrs.Geeta Devi and hit me on my head. Since I was not aware of this sudden attack, I could not protect myself. I felt darkness around myself and fell down and become senseless. After sprinkling the water by Mrs. Geeta Devi (later come to know), I became in sense. She also gave me a glass of water to drink. Then I got up, took my luggate and moved towards BSF Camp but walking about 50 X. I again felt weakness and fell down in a paddy field and became senseless. I was brought to unit/sector TRA(S) Hospital Gokulnagar by HC Swarn SIngh and one Const. of 5 Bn BSF in semi-conscious condition and with pool of bloods on my forehead. When came in sense, I felt pain in my head and the blood was still oozing out from the wound. The pharmacist ASI Viswa Kumar gave me first Aid, one injection and some medicines. I was referred to G.B.Hospital Agartala on

same day i.e. 02.03.97 and remained there up to 05.03.97 (FN). At G.B.Hospital, my wound was stitched by the doctor. On 05.03.97 (AN) I was discharged from G.B.Hospital Agartala and admitted in Unit/Sector Hospital Gokulnagar and remained here up to 25.03.97. After recovery of my health, I proceeded on 60 days E/L in the month of April 97.

I did not know which area is out of bound, but I was guided by Cobbler Saral Rabidas while proceeding on leave on 2.3.97."

10. Suffice would it be to state that the out of bound area was a civilian area, and assuming that the office order dated 13.05.1996 was proved, required petitioner not to be in the civilian area during duty days irrespective of whether or not petitioner was on duty. But, if on leave, and in the absence of any plying vehicle from the Unit to drop the petitioner to the bus stand, how else would the petitioner reach the bus stand to go to his village, if he would not walk down the civilian area?

11. It is unfortunate that aforesaid aspect has not been looked into by the respondents.

12. What disturbs us is the petitioner‟s signatures not being obtained when he allegedly pleaded guilty and when he allegedly stated, as recorded during proceedings, that he does not wish to serve BSF.

13. In a recent decision pronounced by us on August 06, 2012 deciding WP(C) No.2681/2012 Anil Kumar v. UOI & Ors., we had considered the scope of sub-rule (2) of Rule 142 of the BSF Rules even where it was proved beyond doubt that the person concerned was pleading guilty at the trial. The sub-rule in question reads as under:-

"(2) If an accused person pleads "Guilty", that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused

understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty."

14. We had opined as under:-

"30. An incisive reading of sub-rule 2 of Rule 142 would reveal that there are two distinct limbs thereof. As per the first limb, if the accused pleads guilty, it is the duty of the Court to ascertain whether the accused understands the nature of the charge and the general effect of the plea of guilt. The second limb is for the Court to read the Record of Evidence or the Abstract of Evidence, as the case may be, and if it appears from the record that the accused ought to plead not guilty, to record a plea of not guilty (despite the accused having pleaded guilty) and proceed with the trial.

31. The record reveals that after recording the plea of Guilty, the Commandant has only recorded satisfaction of the first limb of sub-rule 2 of Rule 142 and not the second. It stands recorded as under:-

"The accused having pleaded guilty to the charge, the Court explains to the accused the meaning of charge(s) to which he has pleaded guilty and ascertains that the accused understands the nature of the charge(s) to which he has pleaded guilty. The Court also informs the accused the general effect of that plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge(s) and the effect of his plea of guilty, accepts and records the same. The provisions of Rule 142(2) are complied with."

32. We are accordingly constrained to hold in favour of the petitioner and against the respondents. Two facts lean in favour of the view taken by us. The first is the Commandant falsifying the record pertaining to February 02, 1999, offence report proceedings and the second being that the petitioner had been projecting a defence, which was backed by his medical condition i.e. the petitioner‟s compulsion, being in seething pain due to testicle swelling, to abandon the duty post and rush to a doctor which would had removed the culpable mens rea with reference to the act of the petitioner, thereby leading towards a suggestion that the petitioner did not plead guilty at the trial; the Commandant who could falsify the offence report proceedings on February 02, 1999 could well have thereby falsified the trial proceedings as well. In any case, there is a complete dereliction of duty by the Commandant to ignore the second limb of sub-rule 2 of Rule 142 of the BSF Rules 1969."

15. In the instant case, with respect to provisions of Rule 142(2), identical is the language used in the printed proforma, as was the language used in Anil Kumar‟s case (supra). Beneath the plea of guilt, without obtaining signatures of the petitioner, the Commandant holding the trial, has recorded a satisfaction:-

"The accused having pleaded guilty to both charges, the Court explains to the accused the meaning of charge(s) to which he has pleaded guilty and ascertains that the accused understands the nature of the charge(s) to which he has pleaded guilty. The Court also informs the accused the general effect of that plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge(s) and the effect of his plea of guilty, accepts and records the same. The provisions of Rule 142(2) are complied with."

16. Suffice would it be to state that the second limb of the Rule has not been complied with. It is apparent that the Commandant has not even bothered to note that he had to consider the record of evidence not only with respect to the petitioner understanding the effect of the plea of guilt entered but also whether from the abstract of evidence it was a case where the accused ought to plead not guilty. We would only highlight that in the instant case the petitioner was admittedly on leave. He was to proceed to his home town. Official transport vehicle to drop him to the bus stand was not available. He had thus to walk down the civilian area to reach the bus stand. He pleaded a version in defence as per his statement during Record of Evidence which could have saved him by way of a valid explanation. Under the circumstances, there is every possibility that the Summary Security Force Court Trial was a sham by recording a plea of guilt. The absence of petitioner‟s signatures beneath the plea of guilt thus assumes importance.

17. We quash the trial as also the penalty imposed upon the petitioner, which we note is one of dismissal from service. The petitioner is directed to be reinstated in service with all consequential benefits and we do not permit a re-trial considering that more than 12 years have lapsed since the alleged incident took place.

18. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 03, 2012 dk