It would be in the fitness of things to first and foremost state that the Apex Court in a most learned, laudable, landmark and latest judgment titled Union of India & Ors vs Jogeshwar Swain in Civil Appeal Nos.8629-8630 of 2014 and cited as 2023INSC802 and also as 2023 LiveLaw (SC) 758 in the exercise of its civil appellate jurisdiction that was pronounced as recently as on September 5, 2023 has clearly maintained that even if the accused pleads guilty of misconduct, the Court has to satisfy itself that the confession is voluntary. The Apex Court in this leading case raised serious doubts pertaining to the conviction that was based on a guilty plea in a case involving allegations against a Border Security Force (BSF) constable (respondent) of clicking photographs of a lady doctor while she was bathing. It must be noted that even the Delhi High Court had set aside the punishment of dismissal from service that was imposed on the original petitioner that is the BSF constable. The Apex Court rightly questioned that why would the respondent confess when there was minimal evidence against him. The Court also in this case very rightly underscored several critical factors that raised concerns about the credibility of the confession, including the absence of an eye-witness, the recovery of the camera from another person’s house, and so also the inconsistencies in witness statements.
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice Manoj Mishra for a Bench of Apex Court comprising of Hon’ble Mr Justice JB Pardiwala and himself sets the ball in motion by first and foremost putting forth in para 1 that, “These appeals are directed against the judgment and order of the High Court of Delhi at New Delhi (in short, “the High Court”), dated 21.02.2013, by which W.P. (C) No. 17430 of 2006 filed by the respondent (the original petitioner) was allowed, the punishment of dismissal imposed upon the original petitioner was set aside and a direction was issued that the original petitioner would be entitled to full consequential benefits except salary to the extent of 50%. The appellants have also challenged the order of the High Court dated 22.11.2013, by which the review petition of the appellants seeking a review of the order dated 21.02.2013 was dismissed, though certain observations made in the earlier order were recalled.”
To put things in perspective, the Bench then while dwelling on facts envisages in para 2 that, “The original petitioner/accused (the respondent herein) was a Constable (General Duty) in the Border Security Force (in short “BSF”). The case against him was that while he was posted as a security aide to a lady doctor, on 17.06.2005, at about 7.45 pm, he clicked pictures of that lady doctor while she was taking her bath. The allegations against him were that,– on the fateful day, the lady doctor requested him to leave her quarter as she were to take a bath; while she was bathing, she noticed through the window of her bathroom two camera flashes; suspecting foul play, she raised an alarm; on her alarm, her mother went out but could find none; later, the matter was reported to the Chief Medical Officer; the BSF authorities investigated the matter and put the original petitioner under open arrest. During investigation a camera was recovered from the residential quarter of another person, who was a neighbour of that lady doctor. Thereafter, under orders of the Battalion Commandant, proceedings were initiated against the original petitioner in respect of commission of an offence under Section 40 of the Border Security Force Act, 1968 (in short, “BSF Act, 1968”), that is for committing an act prejudicial to the good order and discipline of the Force (BSF), and record of evidence was prepared. On completion of the record of evidence, the Commandant remanded the original petitioner for trial by a Summary Security Force Court (in short, “SSFC”). The SSFC held its proceedings on 23rd July, 2005 wherein the original petitioner is stated to have pleaded guilty. Based on that, the SSFC dismissed the original petitioner from service.”
As it turned out, the Bench enunciates in para 3 that, “Aggrieved by his dismissal from service, the original petitioner filed an appeal under Section 117 of the BSF Act, 1968 before the Appellate Authority. In the appeal, the original petitioner refuted the allegations of clicking pictures of the lady doctor while she was taking her bath and claimed that,– while recording the evidence, the prosecution witnesses were not offered for cross-examination; there was no evidence forthcoming against the original petitioner in the testimony of prosecution witnesses; the reel of the camera allegedly used in commission of the offence was not developed; the statement of PW-9 with regard to concealment of the camera in her house by the original petitioner was contradictory to her previous statement where no such allegation was levelled by her; nothing incriminating was recovered from the possession of the original petitioner; the statement of prosecution witnesses indicated that the original petitioner had denied the allegations levelled against him, therefore, there was no reason for making a confessional statement, hence, the same cannot be the sole basis for the punishment. In the alternative, the original petitioner pleaded that he was a young man, aged 31 years, who had diligently discharged his duties for over 11 years without a complaint, therefore, even if the original petitioner is found guilty, a lenient view be taken by taking into account that he has old parents and a family dependent on him.”
As we see, the Bench then discloses in para 4 that, “The aforesaid statutory appeal of the original petitioner was dismissed by the Director General, BSF, New Delhi. The letter communicating dismissal of the appeal recited that since the original petitioner had pleaded guilty to the charge, the SSFC justifiably held him guilty and dismissed him from service.”
Needless to say, the Bench then mentions in para 5 that, “Aggrieved by dismissal of his appeal, the original petitioner filed writ petition before the High Court.”
Do note, the Bench notes in para 8 that, “The High Court noticed that the minutes of the proceeding recording acceptance of guilt by the original petitioner before the SSFC was not signed by the original petitioner.”
Truth be told, the Bench observes in para 9 that, “Taking all the aforesaid circumstances as well as the plea that no confession was made by the original petitioner into consideration, the High Court opined that there was no worthwhile evidence against the original petitioner as to weigh on him to admit his guilt. The High Court thus allowed the writ petition by the impugned order dated 21.02.2013.”
Simply put, the Bench specifies in para 12 that, “Aggrieved by the orders of the High Court, the Union of India and BSF administration are in appeal before us.”
It cannot be just glossed over that the Bench lays bare in para 27 that, “In the instant case, from the materials brought on record we find that the original petitioner was placed under open arrest on 20.06.2005. On 21.06.2005, the Commandant of 128 Battalion BSF, wherein the original petitioner was posted, issued an order for recording of evidence. During the course of recording of evidence, the last witness statement, that is of PW-10, was recorded on 29.06.2005. On 29.06.2005 itself, the original petitioner was asked to give his statement. According to the original petitioner, the abstract of evidence was not provided to him and twenty-four hours’ time was not given to him for reflection therefore, there was a clear infraction of the proviso to sub rule (3) of Rule 49 of the BSF Rules, 1969. Hence, according to the original petitioner, confession, if any, made during the course of preparation of the record of evidence, is liable to be ignored.”
It is worth noting that the Bench notes in para 32 that, “A perusal of the minutes of the proceedings of the SSFC dated 23.07.2005 would indicate that though the plea of guilty was recorded during the course of the proceedings dated 23.07.2005 but the minutes are not signed by the original petitioner. It is only signed by the Commandant 128 Battalion BSF, namely, Ghanshyam Purswani.”
Plainly speaking, the Bench points out in para 34 that, “A plain reading of sub-rule (2) of Rule 142 would indicate that on the accused pleading guilty, before a finding of “Guilty” is recorded, the SSFC is not only required to ascertain whether the accused understands the nature and meaning of the charge to which he has pleaded guilty but it must also inform the accused of the general effect of that plea and of the difference in procedure which will be made by the plea of guilty. That apart, even if the accused pleads guilty, if it appears from the record or abstract of evidence or otherwise that the accused ought to plead not guilty, the SSFC is required to advise him to withdraw that plea.”
Be it noted, the Bench notes in para 36 that, “Reverting to the facts of this case, we notice from the record that the minutes of the proceedings of the SSFC dated 23.07.2005 do not indicate as to what advise was rendered to the accused with regard to the general effect of the plea of guilty taken by him. The minutes dated 23.07.2005 are nothing but a verbatim reproduction of the statutory rule. There is no indication as to how the accused was explained of the broad consequences of him pleading guilty. Verbatim reproduction of the statutory rule and nothing further, in our view, is no compliance of the provisions of sub-rule (2) of Rule 142 of the BSF Rules, 1969. Therefore, we are of the view that the appellants cannot draw benefit from the minutes of the proceedings as to canvass that the plea of guilty was accepted after due compliance of the requirements of sub-rule (2) of Rule 142 of the BSF Rules, 1969.”
To be sure, the Bench states in para 37 that, “Further, the record of the proceedings of SSFC dated 23.07.2005 does not bear the signature of the accused. No doubt, the requirement of having the signature of the accused on the minutes recording plea of guilty was first introduced by insertion of the proviso to sub-rule (2) of Rule 142 with effect from 25.11.2011. But there existed no embargo in obtaining signature of the accused to lend credence to the making of the plea of guilty. Absence of signature of the accused in this case assumes importance because here the accused denies taking such a plea and looking at the available evidence, pleading guilty appears to be an unnatural conduct. At the cost of repetition, it be observed that the case against the petitioner was in respect of clicking photographs of a lady doctor while she was taking her bath. There was no eye-witness of the incident; the camera was recovered from some other person’s house; PW-9, a witness to the keeping of the camera by the accused (i.e., the original petitioner), in her previous statement made no such disclosure; there was no cogent evidence with regard to ownership of that camera; and, above all, even the reel was not developed to confirm the allegations. In these circumstances, when there was a challenge to the making of such confession before the High Court, a very heavy burden lay on the non-petitioners (appellants herein) to satisfy the conscience of the Court that the plea of guilty was recorded after due compliance of the procedure prescribed by the BSF Rules, 1969. As we have already noticed that there was no proper compliance of the procedure prescribed by sub-rule (2) of Rule 142 of the BSF Rules, 1969, absence of signature of the accused in the minutes further dents the credibility of the SSFC proceeding. The High Court was therefore justified in looking at the evidence to find out whether punishment solely on the basis of confession (i.e., plea of guilty) was justified.”
Adding more to it, the Bench notes in para 38 that, “In this context, the High Court meticulously examined the record of evidence prepared under the direction of the Commander to come to the conclusion that except for the statement of PW-9 that the camera was hidden by the original petitioner, there was no worthwhile evidence in respect of his culpability. The High Court also noticed that even PW-9 was not consistent, as during investigation PW9 had not made any such disclosure that the original petitioner had hidden the camera in the house from where it was recovered. What is important is that the house from where the camera was recovered was not the house of the original petitioner but of another constable who had his house adjoining the quarter where the lady doctor had taken her bath. Interestingly, there was no evidence led to indicate that the said camera was of the original petitioner. In these circumstances, where was the occasion for the original petitioner to make confession of his guilt when there was hardly any evidence against him. Admittedly, none had seen him clicking photographs and the lady doctor also did not inculpate the original petitioner though she might have suspected the original petitioner. Further, we notice that while preparing the record of evidence also, plea of guilty of the original petitioner was recorded, which the original petitioner claims to have been obtained under duress and without giving him sufficient time to reflect upon the evidence as is the mandate of the proviso to sub-rule (3) of Rule 49 of the BSF Rules, 1969. At this stage, we may remind ourselves that while preparing the record of evidence the statement of last witness was recorded on 29.06.2005 and on that day itself, without giving twenty-four hours’ time for reflection, as is required by the proviso to sub-rule (3) of Rule 49 of the BSF Rules, 1969, alleged confessional statement of the original petitioner was recorded. In these circumstances, when the original petitioner had raised a plea before the High Court that his confession was involuntary and that in fact no confession was made by him, there was a serious burden on the non-petitioners (i.e., the appellants herein), to satisfy the conscience of the High Court that there had been due compliance of the procedure and that the confession was made voluntarily. More so, when the record of evidence contained no worthwhile evidence regarding the guilt of the original petitioner. In the aforesaid backdrop, the SSFC ought to have advised the original petitioner to withdraw the plea of guilt as per provisions of sub-rule (2) of Rule 142 of the BSF Rules, 1969.”
Most significantly and as a corollary, the Bench holds in para 39 that, “In light of the discussion above and also taking into account that the minutes of the proceedings recording the plea of guilty did not bear the signature of the original petitioner, in our considered view, the High Court was justified in finding the dismissal of the original petitioner on the basis of the plea of guilty unwarranted and liable to be set aside in exercise of powers under Article 226 of the Constitution of India. The High Court was also justified in not re-opening the proceeding from the stage where the error crept in by noticing that it would serve no useful purpose as there was hardly any evidence on record and nearly a decade had passed since the date of the incident.”
Finally, the Bench concludes by holding in para 40 that, “For all the reasons above, we do not find it a fit case for interference in exercise of our jurisdiction under Article 136 of the Constitution of India. The appeals are dismissed. Parties to bear their own costs.”
In sum, the Apex Court has rightly declined to interfere. The top court thus rightly dismissed the appeals and upheld what the Delhi High Court held. The top court has sent a loud and clear message to all courts that even if an accused pleads guilty of misconduct, the court has to satisfy itself that the confession is voluntary. The Apex Court also very rightly underscored the importance of strict adherence to procedural safeguards when accepting guilty pleas. No denying!
Sanjeev Sirohi