Rajinder Singh vs Union Of India And Others
2025 Latest Caselaw 22 J&K

Jammu & Kashmir High Court

Rajinder Singh vs Union Of India And Others on 2 May, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT JAMMU
                                                   Reserved on   13.03.2025
                                                   Pronounced on 02.05.2025

SWP No. 2237/2007(O&M)


Rajinder Singh                                    .....Appellant(s)/Petitioner(s)


                      Through: Ms. Surinder Kour, Sr. Adv. with
                               Ms. Ramandeep Kour, Advocate
                 vs
Union of India and others                                    ..... Respondent(s)
                      Through: Mr. Vishal Sharma, DSGI

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                JUDGMENT

1. The petitioner, after initial appointment in the year-1986 as Constable

(GD) in the Border Security Force (BSF) was promoted to the post of

Head Constable in the year, 2000. In July- 2003, the petitioner was driving

the vehicle No. PB-08C-2140/TATA 5 Ton carrying 16 passengers from

Dharmkund and when he reached Kud, the vehicle fell down the road due

to which, Head Constable Lalit Kumar Toppo and Constable Mr. Deepak

Kumar Deep lost their lives, and 14 others sustained injuries. The

Summary Court of Inquiry was conducted, and it was decided that the

strict legal action be taken against the petitioner for rash and negligent

driving resulting in loss of two precious lives and further 50% cost of total

damage i.e. Rs. 92,821.50 be recovered from the petitioner. Thereafter, the

respondents conducted Petty Security Force Court(PSFC) Proceedings

against the petitioner on three charges and the petitioner was found guilty

of all three charges under section 46 of the Border Security Force, Act (for

short 'the BSF Act') and was punished with one month imprisonment in

force custody and reduction to the rank of Constable. This order, however,

was subject to confirmation by the Confirming Authority. Thereafter,

respondents issued order dated 07.05.2007, whereby they fixed the re-

assembling of PSFC on 18.05.2007. The petitioner filed the writ petition

and challenged the order dated 07.05.2007 being aggrieved of re-assembly

of PSFC. Thereafter, the proceedings of PSFC were rescheduled for

30.05.2007 and ultimately, vide order dated 30.05.2007, the punishment

imposed upon the petitioner was enhanced and he was directed to suffer

imprisonment for three months and reduced to the rank of constable.

Besides, forfeiture of two years past service for the purpose of pension

was also ordered.

2. The petitioner being aggrieved of order dated 30.05.2007 has filed this

petition for quashing the same on various grounds including that the

petitioner could not have been punished twice for the same offence. The

petitioner was earlier sentenced to one month imprisonment and reduction

in rank to constable from Head Constable and thereafter he was punished

with three punishments vide order dated 30.05.2007.

3. The respondents have filed the response stating therein that on account of

incident that took place on 17.07.2003, two individuals, namely, Lalit

Kumar Toppo-Head Constable and Mr. Deepak Kumar Deep-Constable

lost their lives, and 14 others sustained injuries. Thereafter, an inquiry was

conducted in two parts, first part was to ascertain the death and injuries

caused to Government servant whether attributable to Government duty

and second part to cover loss/damage to Government property as well as

fixing the responsibility for accident/lapses.

4. As per the instructions of the competent authority of the Staff Court of

Inquiry proceedings, strict legal action was to be taken against the

petitioner for rash and negligent driving resulting in loss of two precious

lives and 50% cost of total damage i.e. 92,821.50 was to be recovered

from the petitioner and remaining 50% amount was to be borne by the

State. In respect of the legal action, the petitioner was tried by PSFC held

at HQ 65 Bn BSF w.e.f. 22.01.2007 to 09.02.2007 on three charges and

subsequently PSFC reassembled on 30.05.2007. The petitioner was found

guilty on three charges under Section 46 of the BSF Act and was awarded

sentence of one month imprisonment in force custody and reduction in

rank to the post of constable. The findings and the sentence were subject

to confirmation by the Confirming Authority, and the Confirming

Authority before confirming findings and sentence ordered PSFC to

reassemble for revisiting the sentence and accordingly revision trial was

held on 30.05.2007 and after taking into consideration all the matters

relating to revision of sentence, the court revoked its earlier sentence and

further awarded sentence to the accused/petitioner in the following

manner:

(i) To suffer imprisonment for three months in force custody

(ii) To be reduced to the rank of Constable, and

(iii) To forfeit two years past service for the purpose of pension.

5. After confirmation, the findings and sentence were promulgated upon the

petitioner on 31.07.2007 by the Commandant 65 th Bn. BSF. The petitioner

was entitled to prefer post confirmation petition to DG BSF against the

findings and sentence of the PSFC in terms of provisions of section 117(2)

of the BSF Act but he did not avail the same and straightway approached

this Court. The respondents have stated that in terms of section 113 of the

Act read with Rule 105 of the BSF Rules, the Confirming Authority

directed reassembling of the PSFC to reconsider the sentence awarded by

the Court. It is stated that the petitioner was found guilty of all the three

charges which were very serious in nature, particularly when death of two

persons was caused, and 14 other persons were injured, due to rash and

negligent driving on the part of the petitioner. The petitioner had

consumed the liquor while driving specially knowing fully well that he

was driving in hilly terrain. While negotiating a sharp U turn, where a

greater amount of caution was required by the petitioner, he looked

backwards, thereby putting lives of all the persons travelling in vehicle, in

grave danger. It is stated that in compliance to the BSF Rule 105(4)(b),

PSFC reconsidered the sentence awarded earlier, and passed sentence

afresh. The respondents have denied the allegations levelled by the

petitioner in respect of procedural infractions on the part of the

respondents.

6. Though the petitioner has raised number of grounds complaining the

procedural infractions on the part of the respondents, but during her

submissions, Ms. Surinder Kour, learned Senior Counsel appearing for the

petitioner has restricted the grounds of challenge to order dated

30.05.2007 only to the extent that the petitioner has been punished twice

for the same offence. Therefore, this Court has not taken note of other

grounds urged by the petitioner in the present writ petition.

7. Ms. S. Kour, Senior counsel for the petitioner has vehemently contended

that once the petitioner was sentenced by the PSFC with reduction of rank

to the post of constable and imprisonment of one month, the second trial

could not have been held by PSFC, resulting into three harsher

punishments.

8. Per contra, Mr. Vishal Sharma, learned DSGI has argued that the

petitioner was initially sentenced and punished by PSFC with one month

imprisonment and reduction to the rank of Constable from Head Constable

but the Confirming Authority did not accept the sentence awarded to the

petitioner because the charges were grave in nature, as two persons had

died and 14 others were injured in the incident. Accordingly, the

Confirming Authority directed for revision of sentence in terms of section

113 of the BSF Act and in compliance to Rule 105 of the BSF Rules, the

sentence was revised and enhanced.

9. Heard and perused the record.

10. At first blush, the contention raised by the petitioner that the trial was

conducted by PSFC twice, resulting into punishments on two different

occasions, appears to be very attractive but on a deeper scrutiny, it is

found that the contention raised by the petitioner is misconceived.

11. This is not denied that the petitioner was initially convicted and sentenced

to one month's imprisonment and reduction to the post of Constable from

Head Constable, but it is the contention of the respondents that the

findings and the sentence awarded by the PSFC were subject to

confirmation by the Confirming Authority. The petitioner has not been

able to dispute the contention of the respondents that the findings of PSFC

and the sentence awarded, were subject to confirmation by the Confirming

Authority.

12. Section 113 of the BSF Act is extracted as under:

113. Revision of finding or sentence.--(1) Any finding or sentence of a Security Force Court which requires confirmation may be once revised by order of the confirming authority and on such revision, the court, if so directed by the confirming authority, may take additional evidence.

(2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent.

(3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision, provided that, if a General Security Force Court, it still consists of five officers, or, if a Petty Security Force Court, of three officers.

13. A perusal of the section 113 of the BSF Act reveals that any

findings/sentence of the Security Force Court which requires confirmation

may be once revised by the order of the Confirming Authority and the

court while revising the sentence, shall consist of same officers as were

present when the original decision was passed unless any of those officers

are unavoidably absent. Thus, in the instant case, the Confirming

Authority in terms of section 113 of the Act has directed the revision of

the sentence by the PSFC. Further, Rule 105(4)(b) of the BSF Rules

provides that the court can reconsider its sentence and if it does not adhere

to the sentence already awarded, revoke the sentence and pass sentence

afresh.

14. In the instant case vide order dated 30.05.2007, the PSFC revoked its

earlier order and sentenced the petitioner with the punishment as

mentioned above and this Court is satisfied that the PFSC had exercised

its power of revision pursuant to the order of Confirming Authority in

terms of mandate of Rule 105(4)(b) of the BSF Rules, 1968.

15. In view of the above, this Court does not find any merit in the present

petition. The same is accordingly, dismissed.

(RAJNESH OSWAL) JUDGE Jammu 02.05.2025 Rakesh PS

Whether the order is speaking: Yes Whether the order is reportable: Yes