Atal Bihari vs Union Of India & Ors.
2013 Latest Caselaw 4252 Del

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     * IN THE HIGH COURT OF DELHI AT NEW DELHI

     +            W.P.(C) 5622/2013 & CM No.12449/2013

     %                    Date of decision: 18th September, 2013

      ATAL BIHARI                                   ..... Petitioner
                          Through :    Mr. Satish Chand and
                                       Mr. Sarbendra Kumar, Advs.
                          versus

      UNION OF INDIA & ORS                      ..... Respondents
                    Through :          Ms. Barkha Babbar, Adv.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MR. JUSTICE V. KAMESWAR RAO

GITA MITTAL, J. (Oral)
1.    By way of the present writ petition, the petitioner assails the
order dated 9th April, 2013 whereby the mercy petition made by the
petitioner has been rejected. The petitioner also assails the prior
order dated 18th July, 2006 passed by the Summary Security Force
Court („SSFC‟ hereafter) whereby the petitioner was found guilty
of commission of offence punishable under Section 46 of the
Border Security Force Act, 1968 and the sentence awarding
dismissal from service.




WP(C) No.5622/2013                                        page 1 of 7
 2.    The petitioner was recruited as Constable in the Border
Security Force on the 24th of March, 1993. In the year 2006, he
was posted with the 89th Battalion of the Border Security Force at
West Bengal.
3.    The case against the petitioner commenced on a complaint
made by one Shri Hari Mohan Dass about an incident involving a
woman, Smt. Parvati Das. In order to obviate any dispute we may
usefully set down the statement made by the Smt. Parvati Das who
appeared as the first witness in support of the prosecution during
the petitioner‟s trial. The statement reads as follows:-
      "PW-1 - First witness for prosecution

            Mrs Parvati Das, age approx 40 years (Hindu)
      resident of Vill - Makarhat Daspara being duly
      affirmed is examined by the court.

            I am the resident of Makarhat Daspara
      Village. I know and recognize the accused present
      before the court.

             At about 1900 hrs on 10.07.2006, I went to
      Makarhat village to procure some ration. While
      going back to my house, one person suddenly put
      his palm over my mouth from behind. While trying
      to release myself I saw his face and came to know
      that he was a BSF person, the one who is sitting
      before the court as accused. He then dragged me
      down in a jute filed, which is near a pond.
      Thereafter, he forcibly took of my cloths and made
      me naked. He was in civil dress without his vest. I
      then started kicking him but he said I am not going
      to let you go even if you kick me. I also started

WP(C) No.5622/2013                                         page 2 of 7
       shouting and crying. Hearing my cry, the villagers
      rushed towards that place where I was brought by
      the BSF Jawan. As soon as the villagers approached
      towards us, he ran away from the place. I also got
      up and joined the villagers.

      Cross examined by Accused

            My son was ill. I worked in jute filed whole
      day. While I was returning to my house after
      procuring ration and medicine for my son, accused
      suddenly put his palm over my mouth from behind
      and dragged me to nearby jute filed.

            It was about 0730 PM and due to cloudy
      weather and dense jute filed there was no broad
      daylight.

             The accused dragged me down to the nearby
      jute filed and forcibly took off my cloth and made
      me naked. When I was trying to get myself free, the
      accused said that he will not allow me to leave the
      place at any circumstances.

             The accused was trying to outrage my
      modesty, I started shouting and crying. Hearing my
      cry, villagers gathered and approached towards us.
      Immediately I got up after wrapping my saree on my
      person.

            At that time I was laying dwon in muddy field
      and my clothes got wet and muddy. As and when
      the villagers reached at the spot, I immediately
      wrapped the wet and muddy cloth on myself, since I
      could not wear it properly."




WP(C) No.5622/2013                                     page 3 of 7
 4.    The evidence of Shri Hari Mohan Dass was recorded as the
second witness who has corroborated the statement of PW-1. This
witness has deposed that while answering the nature call at about
18:45 hours on the 10th of July, 2006 in village Daspara, he had
heard the cries and shouts of a woman from another nearby jute
field. He had informed his son about the cries who then went to
assemble the villagers to check the area. In the meantime, he
proceeded towards the place from where the cries were emanating
and while going towards the jute field, he saw two persons engaged
in a scuffle but the witness could not recognize them. The witness
shouted aloud to other villagers whereupon one of the persons who
he recognized as a BSF Jawan started running away. The other
person who was a lady ran way from another side towards the
village. Other villagers who had assembled there, caught hold of
the fleeing BSF Jawan who was then taken to the house of one
villager. The witness identified the petitioner who was present in
court as the person who was caught hold by the villagers. The
petitioner was handed over to the BSF authority upon their arrival.
5.    In his defence, the petitioner does not dispute that an
incident took place on the 10th of July, 2006 but has attributed
violence against him by 10-15 persons. He does not accept the
incident as narrated by the prosecution witness.




WP(C) No.5622/2013                                       page 4 of 7
 6.    Be that as it may, upon receipt of the complaint, an order
dated 11th July, 2006 was passed by the Commandant appointing
an officer to prepare the Record of Evidence against the petitioner
for commission of the following offences punishable under Section
48 of the BSF Act.
       "OFFICE OF THE COMMANDANT : 89 Bn BSF
         GOVINDPUR, RAIGANJ WEST BENGAL

                              ORDER

Under the provision of BSF Rule 45, IRLA No.19045948 Shri G N Padukone, 21 C of this unit is hereby detailed to prepare record of evidence against No.93254092 CT Attal Bihar "A" Coy this Unit committed an offence under BSF Act Section 46 "COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, USING CRIMINAL FORCE TO A WOMAN WITH INTENTION TO OUTRAGE HER MODESTY PUNISHABLE U/S-354 IPC"

There is no dispute with regard to the fact that the Record of Evidence was prepared in the presence of the petitioner.

7. On consideration of this evidence, by an order passed on 13th July, 2006, Commandant directed that the petitioner would be tried by SSFC on the 18th of July, 2006 for commission of the above offences. The copy of the record of proceedings as well as charge sheet was duly given to the petitioner. He was also directed to nominate an officer as friend in the trial.

WP(C) No.5622/2013 page 5 of 7

8. Pursuant to the said order, the petitioner was tried by the SSFC in which the above statement of the complainant and Shri Mohan Dass was recorded. The original record of the proceedings have been produced by the respondent before us which show that the petitioner was given due opportunity to cross-examine the witness. All statutory compliances have been effected.

9. The SSFC found the petitioner guilty of commission of offences which he was charged with and he was sentenced to dismissal from service.

10. The petitioner‟s statutory petition was duly considered by the respondents and rejected by an order dated 7 th November, 2006. The petitioner had no statutory right to file further petition however his mercy petition dated 27th February, 2013 was duly considered and rejected by an order passed on 9th April, 2013.

11. The scope of interference by this court into the proceedings arising under the SSFC conducted under the BSF Act is narrow. In the instant case, the finding of guilt and the imposition of punishment is supported by the evidence which was recorded by the SSFC. No violation of any statutory provisions or principles of natural justice has been made out on behalf of the petitioner.

12. Learned counsel for the petitioner has urged that the SSFC had no jurisdiction to conduct the trial of the petitioner in view of Section 47 of the BSF Act. A reading of the said statute would show that the SSFC is prohibited only from conducting trial of a person who commits an offence of murder or of culpable homicide

WP(C) No.5622/2013 page 6 of 7 not amounting to murder against, or of rape in relation to, a person not subject to this Act. There is no prohibition for the SSFC to try a person subjected to the BSF Act for other civil offences. Section 46 of the enactment confers jurisdiction on the SSFC to hold the trial of the petitioner for the offence with which he was charged in the instant case.

For all the foregoing reasons, we find no merit in this writ petition and application which are hereby dismissed.

(GITA MITTAL) JUDGE

(V. KAMESWAR RAO) JUDGE SEPTEMBER 18, 2013 mk

WP(C) No.5622/2013 page 7 of 7