[Cites 13, Cited by 0]
Rajasthan High Court - Jodhpur
Union Of India And Ors vs Manohar Singh on 1 December, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:50351-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 598/2014
Union Of India And Ors.
----Appellant
Versus
Manohar Singh
----Respondent
For Appellant(s) : Ms. Laxmi Bohra on behalf of Mr.
Dhanraj Vaishnav
For Respondent(s) : Mr. K.K. Shah
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE BIPIN GUPTA
Judgment
1. Date of conclusion of arguments 17.09.2025
2. Date on which judgment was reserved 17.09.2025
3. Whether the full judgment or only the operative part is
pronounced: Full Judgment
4. Date of pronouncement 01.12.2025
Per Dr. Pushpendra Singh Bhati, J:
1. The present Special Appeal (Writ) has been filed by the
Union of India under Article 225 of the Constitution of India,
assailing the judgment dated 07.01.2014 passed by the learned
Single Bench in S.B. Civil Writ Petition No. 1184/1994, Manohar
Singh v. Union of India & Ors.
1.1. In the aforesaid writ petition, the writ petitioner-respondent
had challenged the order dated 20.05.1993 issued by the
Inspector General, Kashmir FTR BSR, Commanding Officer,
Srinagar, whereby the findings and sentence awarding five years'
rigorous imprisonment along with dismissal from service were
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confirmed, as well as the subsequent appellate order dated
27.07.1994 passed by the Director General, BSF, New Delhi,
affirming the said punishment. The learned Single Bench of the
Hon'ble Court allowed the writ petition; aggrieved by which the
present appeal has been preferred.
2. The brief facts culminating in the present special appeal are
that the writ-petitioner- respondent herein (hereafter referred to
as the respondent), then serving as a Driver in the Border
Security Force (BSF), came to be charged for the offence
punishable under Section 376 of the Ranbir Penal Code (RPC),
along with other members of an ambush party, on the allegation
that he ravished two women. The remaining members of the
ambush party were also implicated in offences relating to murder
and causing grievous hurt under various provisions of the RPC.
2.1. The incident is alleged to have occurred during the
intervening night of 17/18 May 1990 in a curfew-bound area at
the Acchabal-Diagam-Kukamag Road Tri-junction. On completion
of investigation, the local police submitted a charge-sheet before
the competent Magistrate against 18 accused persons; however,
the petitioner was not arrayed as an accused therein.
Notwithstanding this, cognizance was taken against all 18
persons. Subsequently, invoking the powers under Section 80 of
the Border Security Force Act, 1968, the proceedings were
transferred for trial before the General Security Force Court
(GSFC), in accordance with the BSF Act and Rules.
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2.2. Before the GSFC, a charge-sheet was framed against eight
personnel including the petitioner, attributing to him the offence
under Section 376 RPC in respect of the alleged rape of Mrs. "M"
and Mrs. "A". During the course of trial, the GSFC examined 24
prosecution witnesses, including both prosecutrix.
2.3. The petitioner has consistently asserted that his name did
not find place in the FIR nor in the statements recorded under
Section 161 Cr.P.C., and that he was not identified by either of the
prosecutrix during two test identification parades. He has alleged
grave procedural infirmities in the proceedings before the GSFC
and maintained that he was falsely implicated and made a
scapegoat, particularly when six prosecution witnesses, initially
arraigned as accused, did not depose against him. He further
contended that the prosecution failed to adduce any credible
ocular or medical evidence substantiating the charge.
2.4. Upon conclusion of trial, the GSFC passed judgment on
10.03.1993 convicting the petitioner, sentencing him to five years'
rigorous imprisonment and ordering his dismissal from service.
The sentence was confirmed by the Inspector General, Kashmir
Frontier, BSF on 20.05.1993. The statutory petition preferred
under Section 117(2) of the BSF Act was dismissed by the Director
General, BSF on 27.07.1994.
2.5. Aggrieved thereby, the petitioner instituted a writ petition
before the Hon'ble Court, which came to be allowed; the orders
dated 20.05.1993 and 27.07.1994 were quashed, the petitioner
was directed to be reinstated with all consequential benefits
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except back wages, and was awarded a lump-sum compensation
of Rs. 2,00,000/- for illegal confinement along with Rs. 10,000/-
as litigation costs. The Union of India, being dissatisfied, has
preferred the present special appeal.
3. Ms. Laxmi Bohra on behalf of Mr. Dhanraj Vaishnav, Learned
counsel for the appellant- Union of India submitted that the
Hon'ble Single Bench gravely erred in exceeding the settled and
narrow limits of judicial review permissible under Article 226 of
the Constitution in matters arising out of General Security Force
Court proceedings. It was contended that the High Court cannot
re-appreciate or re-evaluate evidence recorded by military courts,
as repeatedly affirmed by the Hon'ble Supreme Court in Union of
India v. Budupalli Gopalaswamy, B.C. Chaturvedi v. Union of
India, and Union of India v. Major A. Hussain. It was submitted
that the impugned order amounts to sitting in appeal over the
findings of the GSFC, which is impermissible.
3.1. Learned counsel further submitted that the GSFC had
recorded evidence of 24 prosecution witnesses, including the
prosecutrix, and arrived at a reasoned finding of guilt against the
respondent. The sentence dated 10.03.1993 was duly confirmed
by the Inspector General, Kashmir Frontier, BSF on 20.05.1993,
and the statutory petition under Section 117(2) of the BSF Act
was rejected by the Director General, BSF on 27.07.1994. It was
contended that the Hon'ble Single Bench could not have interfered
with concurrent findings of fact.
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3.2. Learned counsel also submitted that the Hon'ble Single
Bench exceeded its jurisdiction by re-assessing the credibility of
witnesses, examining the medical evidence, and evaluating the
identification process, an exercise reserved only for appellate
courts and not for judicial review.
3.3. Learned counsel also submitted that the Hon'ble Single
Bench erred in not only setting aside the conviction and dismissal
order but further directing reinstatement into service with
consequential benefits and awarding monetary compensation of
₹2,00,000 and litigation cost of ₹10,000. It was contended that
such relief could not have been granted in the absence of a
conclusive finding of malicious prosecution or proven miscarriage
of justice.
3.4. Learned counsel further submitted that the incident involved
extremely serious allegations of rape, murder and violence
committed by uniformed personnel in a conflict-sensitive and
curfew-controlled region. It was submitted that reinstatement of a
person convicted by a competent GSFC undermines discipline
within the Force, erodes the integrity of the armed forces justice
system, and adversely affects public confidence, thereby defeating
the constitutional mandate under Article 33.
3.5. In view of the above submissions, learned counsel for the
Union of India submitted that the present special appeal deserves
to be allowed; the judgment dated 07.01.2014 passed by the
Hon'ble Single Bench is liable to be set aside; and the conviction
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and sentence awarded by the GSFC, as confirmed by the
competent authority, ought to be restored.
4. Per Contra, Mr. K.K. Shah, learned counsel appearing on
behalf of the writ petitioner- respondent herein, while opposing
the submissions made on behalf of the appellants, submitted that
the Hon'ble Single Bench acted within the permissible scope of
judicial review under Article 226, as intervention is justified where
findings are perverse, unsupported by evidence, or rendered in
violation of natural justice. It was submitted that the GSFC
conviction suffered from fundamental procedural and evidentiary
defects, warranting correction.
4.1. Learned counsel further submitted that the conviction was
unsupported by any substantive evidence, as the respondent was
not named in the FIR or Section 161 Cr.P.C. statements, was not
identified in either test identification parade, and neither of the
two prosecutrix deposed against him. It was submitted that
medical and corroborative evidence did not support the allegation.
It was submitted that the medical evidence was wholly
inconsistent with the allegation of rape, and several prosecution
witnesses originally arraigned as accused categorically exonerated
the respondent. Thus, the finding of guilt was irrational, perverse,
and entirely unsustainable.
4.2. Learned counsel also submitted that the Hon'ble Single
Bench did not re-evaluate evidence but only examined whether
any legal evidence existed to sustain the conviction. Since the
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finding of guilt was based on conjectures rather than proof,
judicial review was rightly exercised.
4.3. Learned counsel further submitted that reinstatement and
compensation were properly granted since the respondent
suffered wrongful conviction, illegal termination, and five years of
incarceration without any evidence. It was submitted that the
Hon'ble Single Bench has already balanced equities by denying
back wages and awarding only modest compensation.
4.4. Learned counsel also submitted that the plea of military
discipline is a diversionary argument that cannot override
constitutional due process. The discipline of the Force cannot rest
upon sustaining an illegal conviction. It was submitted that public
confidence is strengthened, not weakened, when the judiciary
corrects wrongful punishment and protects individual liberty. The
respondent cannot be sacrificed on the altar of institutional
prestige.
4.5. In light of the above submissions, learned counsel submitted
that the present special appeal filed by the Union of India is
devoid of merit and is liable to be dismissed, and the well-
reasoned judgment passed by the Hon'ble Single Bench deserves
to be upheld in toto.
5. Heard learned counsel for the parties as well as perused the
record of the case, and the cases cited at the Bar.
6. This Court observes that the scope of judicial review under
Articles 225 and 226 of the Constitution in respect of Court-Martial
/General Security Force Court (GSFC) proceedings is narrow and
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supervisory in nature. This Court does not sit in appeal over
findings recorded by military courts, nor can it reassess or reweigh
evidence or substitute its own factual conclusions. Interference
under writ jurisdiction is justified only where proceedings suffer
from jurisdictional infirmity, perversity, complete absence of
evidence, violation of mandatory statutory procedure, or breach of
principles of natural justice. The power of judicial review remains
available despite the self-contained nature of military law, but
must be exercised with restraint and only to prevent grave
injustice.
7. This Court further observes that the legal position has been
consistently clarified by the Hon'ble Supreme Court in Union of
India v. Major A. Hussain, (1998) 1 SCC 357, wherein it was
held that judicial interference is warranted only in exceptional
circumstances where there is manifest illegality or violation of
procedural safeguards, but not for re-appreciation of evidence. In
Union of India v. Himmat Singh Chahar, (1999) 4 SCC 521,
the Apex Court cautioned that writ jurisdiction cannot be
converted into a second appeal, and interference merely because
another view is possible on evidence is wholly impermissible.
Likewise, in Union of India v. Budupalli Gopalaswami (2011
INSC 672, decided on 12.09.2011), it was reiterated that
intervention is warranted only in rare cases involving perversity,
mala fides, colourable exercise of power, breach of natural justice,
or conclusions unsupported by any legal evidence. The Apex Court
has thus carved out a clear exception permitting judicial review in
cases of complete absence of evidence coupled with grave
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procedural illegality, recognising that failure to correct such
injustice would amount to constitutional abdication.
8. Applying the above principles to the facts of the present
case, this Court observes that the conviction of the respondent by
the GSFC rests on total absence of legal and admissible evidence.
The respondent was not named in the FIR, nor in any statement
under Section 161 Cr.P.C.; he was not identified by either
prosecutrix in two separate test identification parades; and when
examined before the GSFC, both prosecutrix did not attribute any
role, presence, or participation to him. There exists no medical or
corroborative evidence supporting the charge. The only purported
evidence emanated from witnesses who were themselves
originally arraigned as accused, rendering their testimony
inherently unreliable. The finding of guilt therefore does not suffer
from insufficiency of evidence but from complete lack of evidence,
amounting to manifest perversity.
9. This Court also observes that the GSFC proceedings are
vitiated by serious procedural lapses, particularly non-compliance
with mandatory Rule 57 and Rule 58 of the BSF Rules, 1969,
governing alteration of charges and inclusion or exclusion of
accused persons. Eleven accused persons originally implicated
were dropped without any recorded explanation or reasoning,
while the respondent, who never figured in the initial investigation
material, was arraigned without any statutory basis or order
invoking Section 319 Cr.P.C. or otherwise recording reasons for
such selective prosecution. Such deviation constitutes a grave
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violation of natural justice and fundamental fairness, striking at
the root of a lawful trial.
10. In view of the foregoing, this Court observes that the present
case squarely falls within the narrow exception recognised in
Major A. Hussain (supra), Himmat Singh Chahar (supra),
and Budupalli Gopalaswami (supra), wherein judicial review is
not only warranted but necessary to prevent miscarriage of
justice. This is a rare case of conviction based on no evidence
coupled with serious procedural illegality, fully attracting
supervisory writ jurisdiction.
11. This Court finally observes that the learned Single Bench did
not exceed the constitutional limits of judicial review under Article
226. The interference was confined to examining the legality of
procedure and the existence of legal evidence, and did not entail
re-assessment of factual material.
12. Accordingly, the Special Appeal (Writ) No. 598/2014
preferred by the appellant-Union of India stands dismissed.
12.1. All pending applications, if any, stand disposed of.
(BIPIN GUPTA),J (DR.PUSHPENDRA SINGH BHATI),J
17-SKant/-
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