Mohinder Singh vs Union Of India And Ors.
2013 Latest Caselaw 3759 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         W.P.(C) No.234/2000


%                                    Date of decision: 26th August, 2013


      MOHINDER SINGH                                              ..... Petitioner
                                   Through:   Mr.Anil Gautam, Advocate

                          versus

      UNION OF INDIA AND ORS.                            ..... Respondents

                        Through:              Ms.Barkha Babbar, Advocate

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J (Oral)

1. By way of the instant writ petition, the petitioner has assailed the legality of the order dated 9th March, 1999 and sentence imposed by the Summary Security Force Court ('SSFC') whereby the petitioner was sentenced to rigorous imprisonment as well as dismissal from service.

2. There is no dispute to the facts giving rise to the petition. The petitioner joined the Border Security Force ('BSF') in the year 1984 and was promoted thereafter as Lance Naik, Naik and Head Constable. He had an unblemished record of service and was rewarded with good entries in his service book as well as cash rewards by his superiors on 10 occasions.

3. In January, 1999, the petitioner was appointed as the Post Commander of BOP Lal Ghat on Indo Bangladesh Border. During the course of this posting on

12th January, 1999, the petitioner along with Lance Naik Nirmal Lakra proceeded for patrolling towards Barsora with the approval of the Company Commander which stood taken on the radio set. The petitioner along with Lance Naik Nirmal Lakra were also required to procure grocery for the troops from the Barsora market in connection with the festival of Lohri on 13th January, 1999.

4. Unfortunately, while returning after making purchases, Lance Naik Nirmal Lakra as well as the petitioner spotted some Bangladeshi intruders taking wood from India to Bangladesh. The petitioner challenged the intruders whereupon they started fleeing towards Bangladesh. As the petitioner and Lance Naik Nirmal Lakra were chasing these intruders, about 15-20 Bangladesh nationals came out from hiding in the bushes. After over-powering the BSF personnel, they tied them with ropes while the two jawans were well within the Indian territory. The BSF personnel were thereafter forcibly taken to Bangladesh BOP Tekkar Ghat and were then handed over to the Bangladesh Forces. The petitioner and Lance Naik Nirmal Lakra were handed over by the Bangladesh Rifles ('BDR') to Commandant Shri B.K. Mehta of the BSF in a flag meeting held on 13th January, 1999.

5. Charges under Section 16(d) of the BSF Act were framed against the petitioner alleging for leaving the post without orders from the superior officer. A second charge was also framed under Section 40 of the BSF Act for crossing over to Bangladesh border without authority.

6. On these two charges, the petitioner was tried by SSFC on 6 th February, 1999 conducted by Commandant Shri B.K. Mehta whereby the petitioner was sentenced to rigorous imprisonment for six months and dismissal from service. These trial proceedings were set aside by the DIG BSF holding that they were illegal. Despite this position, another record of evidence was started against the petitioner in respect of same charges and he was tried for the second time by the SSFC trial conducted on 9th March, 1999. The petitioner was again found guilty

and sentenced to rigorous imprisonment for six months and dismissal from service. His conviction and sentence has been assailed before us by way of the present petition on the ground that the second trial was in gross violation of Section 45 of BSF Act which prohibits the second trial of a BSF personnel with regard to the same charges if the petitioner stood already tried.

7. It is noteworthy that similar proceedings were conducted against Lance Naik Nirmal Lakra who was also tried by the SSFC on the same charges. Nirmal Lakra was found guilty of the first charge while he stood acquitted on the second charge.

8. Learned counsel for the respondents has contended that the petitioner was the senior of the two and for this reason, Nirmal Lakra was sentenced to rigorous imprisonment for only four months and dismissal from service as against six months RI and dismissal which was imposed on the petitioner.

9. The petitioner's statutory petition dated 17th July, 1999 to the Director General, BSF was rejected by a non-speaking order dated 27th November, 1999. The petitioner has assailed the aforesaid conviction and sentence of the SSFC dated 9th March, 1999 and the order dated 27th November, 1999 before this Court by way of the instant writ petition.

10. It is noteworthy that Nirmal Lakra also assailed his conviction and sentence on cognate charges by way of Writ Petition bearing No. 5261/2001. Mr. Anil Gautam, counsel representing the present petitioner, represented Nirmal Lakra in his writ petition as well. This writ petition was allowed by a detailed judgment dated 30th September, 2002 whereby the SSFC trial proceedings were set aside by the Division Bench of this Court. The Court accepted all the objections on behalf of Nirmal Lakra which are identical to those raised by the petitioner before us and set aside his conviction and sentence. The judgment of this Court is reported at 102 (2003) DLT 415 titled Nirmal Lakra vs. UOI & Ors.

11. The respondents assailed the judgment of the Division Bench dated 30 th

September, 2002 by way of Special Leave Petition bearing SLP(C) No. 11552/2003. Leave was granted and the special leave petition was converted into Civil Appeal bearing no. 3729/2005 titled UOI & Ors. Vs. Nirmal Lakra. This Civil Appeal was dismissed by the Supreme Court by an order dated 12 th November, 2012.

12. The petitioner herein has challenged his second trial conducted by the respondent on 9th March, 1999 to 11th March, 1999 on the ground that the same was barred under Section 45 of the BSF Act. It is undisputed that, on the date the second trial was ordered and conducted, the petitioner had already undergone part of the sentence imposed on him by SSFC trial held on 6 th February, 1999 as he was kept in imprisonment from the date of conviction in terms of Section 120 of the BSF Act. This aspect has been considered by the Division Bench of this Court in Nirmal Lakra's case (supra) reported at 102 (2003) DLT 415 in paras 49 to 52.

13. The respondent has set up a plea that the first trial was set aside under Rule 161(1A) of the BSF Rules on the ground that Rule 45 of the Border Security Force Rules had not been complied with.

14. The Court considered the provisions of Section 162 and 121 of the Army Act which are para materia with Section 15 and 75 of the BSF Act. This Court rejected the submission made by counsel for the respondents in Nirmal Lakra (supra) to the effect that second trial in the present case was not barred. This finding clearly binds us in the present consideration as well.

15. So far as the case against the petitioner on merits is concerned, Mr. Anil Gautam, Advocate has also taken the plea that there was no legal evidence at all to support the charges. It is pointed out that prior to commencing patrolling duty, the petitioner had taken approval of the Company Commander and had also made the GD entry before leaving the post. The petitioner was therefore bonafide performing government duty with the permission of the competent authority when

he was forcibly overpowered by the intruders. This is corroborated by the wireless message sent by the petitioner's Company to the next Headquarters when they received information of the captivity of the petitioner and Nirmal Lakra. In this message, the petitioner's Company has stated that the petitioner and Lance Naik Nirmal Lakra left for patrolling duty to Barsora on 12th January, 1999 at 12.30 hours.

16. Mr. Anil Gautam, learned counsel for the petitioner has pointed out that a protest note was received from the Bangladesh Rifles ('BDR'). In response thereto, the petitioner's Company had stated that jawans were on patrolling duty on the international border. This statement clearly shows that hte petitioner was bonafide discharging official duties at the time of the incident. There, therefore, appears to be substance that there was no material to support the charge that the petitioner had left the post without permission.

17. So far as second charge is concerned, it is pointed out that the respondents produced no evidence that the petitioner and Nirmal Lakra had voluntarily crossed over to the Bangladesh territory. Our attention has again been drawn to the response of the Company Commander Shri H.S. Randhawa to the protest note received from the BDR to the above response. It was stated that the BSF personnel (the petitioner and Nirmal Lakra) were well within the Indian Territory when they were taken into custody by the intruders. Our attention is also drawn to the signal sent by Shri Swaran Singh Deputy Commander wherein the crossing of the border was termed as inadvertent.

18. The petitioner's submission before the SSFC brought out all these facts clearly. We however find that the protest note allegedly sent by the BDR to the petitioner's Company had been taken on record before SSFC trial proceedings and has been relied upon to support the conviction. In terms of Section 17 of the BSF Act, the provisions of the Indian Evidence Act are applicable to trials and

proceedings by SSFC. The only evidence to support the charge of unauthorised crossing over into Bangladesh was the alleged protest note received by the respondents from the BDR. This protest note could have been proved only by its author who was not examined as a witness. In the absence of such witness, the protest note could not have been taken on record in evidence.

19. We find that in para 56 of the Nirmal Lakra's case (supra), this very objection taken on behalf of Nirmal Lakra has been accepted. There was no admissible evidence in the eyes of law to establish the authenticity of the protest note.

The conviction of the petitioner on the solitary evidence of this protest note is thus clearly contrary to law and is liable to be set aside.

20. The petitioner also contends that Nirmal Lakra was the sole eye witness to the incident who ought to have been examined in evidence. It is contended that failure to produce this material witness who would have supported the petitioner's innocence also renders SSFC trial as well as its finding of sentence as illegal. This objection at the instance of Nirmal Lakra qua non-production in his trial of the present petitioner was accepted by the Division Bench.

21. In Nirmal Lakra's case (supra), in para 53, the Division Bench of this Court has noted that the present petitioner (Mohinder Singh) was the only witness who could have thrown light on the incidence. He was the only person who could have proved as to whether crossing the border was a wilful act on the part of Nirmal Lakra or otherwise.

22. A legal objection has been taken to the effect that after Nirmal Lakra and the petitioner were handed over by the Bandgladesh intruders to the BDR, a flag meeting was held by Commandant B.K. Mehta with the BDR. He was responsible for taking the petitioner and Nirmal Lakra from the BDR custody and had executed the handing/taking over of these personnel on 13th January, 1999. Commandant

B.K. Mehta was also in correspondence with the BDR.

23. Learned counsel for the petitioner submits that he has reason to believe that Commandant B.K. Mehta had refuted the allegation of the BDR that the petitioner had deliberately crossed the international border in this correspondence. Unfortunately, we do not have the benefit of this statement by Shri B.K. Mehta. However, it is urged that having been actively engaged with all these matters, Shri B.K. Mehta was prohibited in dealing with the case of the petitioner in terms of Rule 46 of the BSF Rules.

We find substance in this objection of the petitioner.

24. Commandant B.K.Mehta was also a material witness in the case and has not been examined by the respondents during the SSFC trial. Instead, Commandant B.K. Mehta conducted the SSFC trial of the petitioner. Sub-rule (ii) of Rule 2 of Rule 46 of the BSF Rules stipulates that where a Commander himself is a witness in the case against the accused, he shall not deal with the accused. The trial by SSFC of the petitioner was contrary to law for this reason as well.

25. We are anguished that in total violation of statutory provisions, the petitioner was kept in custody by the respondents upon his first conviction by the SSFC on 6th February, 1999 when he was sentenced to six months rigorous imprisonment. We are kept completely in the dark as to whether the period between first and second trial i.e. 6th February, 1999 and 9th March, 1999 was considered as part of imprisonment of six months by the order dated 9th March, 1999 upon second SSFC trial and set off against the punishment illegally imposed after the second trial. In any case, the petitioner has undergone more than the sentence which was awarded to him by the SSFC. There is no compensation for the loss of liberty because of the petitioner's incarceration or for the deprivation of his employment for all these year. Whereas Nirmal Lakra filed his writ petition in 2001 long after the filing of the present case, his petition was favourably decided by the judgment

dated 30th September, 2002. However, the petitioner has remained deprived of employment by the respondents from 1999 till date. Grave injustice has resulted to the petitioner in these circumstances.

26. In view of the above, the conviction by the order dated 9 th March, 1999 of the Summary Security Force Court and the sentence imposed upon the petitioner are set aside and quashed.

As a result of the above, the petitioner shall stand reinstated in service and shall be entitled to all consequential benefits including seniority, pay and allowances along with increments if any, within a period of four weeks. The same shall be communicated to the petitioner.

27. All pay and allowances of the petitioner along with increments shall be computed on the basis of the law and rule applicable on the date when the same became due.

28. It is made clear that so far as computation of the income tax on the arrears of pay and allowance is concerned, the same shall be computed and deducted on an year to year basis, premised on the then applicable legal prescription.

29. The petitioner shall be entitled to costs.

30. The petition stands allowed in the above terms.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE AUGUST 26, 2013 sd