JUDGMENT
Permod Kohli, J.
1. Petitioner was serving in 5th Bn Border Security Force in 1994 as Subedar (Inspector). A charge-sheet came to be served upon him containing the following charge:
APPENDIX VI
RULE 53 920
CHARGE SHEET
The accused No. 870021695 Subedar Nawab Khan of 5th BN BSF is charged with-BSF ACT 1968
Section 46: COMMITTING A CIVIL OFFENCE. THAT IS TO SAY ABETTING THE SMUGGLING OF GOODS. PUNISHABLE UNDER SECTION OF CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT, 1974.
In that he,
While posted in ‘B’ Coy Randhanagar, since 1st Mar 1997 as Coy 2 I/C and acted as Offg Coy Commander, abetted smugglers for smuggling of Goods to Banglasdesh and collected Rs 74,0007- illegally from Mar to Jul 1997 and remitted this amount to his relatives by various Demand drafts from SBI Belonia and SBI, Sonamura through No. 85102970 LNK Veer Bhadrappa and No. 90193186 Const Sushil Choudhary.
Sd I(Mohan Dass Prem)
Place: Gokulnagar, Commandant.
Triputra (W) 5th En BSF
30 Sept 1997
2. Pursuant to the service of charge-sheet one S.K. Zutshi, 2nd in Command was detailed for preparation of Record of Evidence (ROE). It is alleged that the officer prepared ROE three times in violation of the Rules and even the petitioner was examined as a witness and cross-examined during the recording of ROE. Further allegation is on recording of the ROE, the charge under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 could not be established and a fresh charge under Section 46 of the Border Security Force Act, 1968 for committing offence in terms of Section 13(1)(e) of the Prevention of Corruption Act, 1988 came to be framed against the petitioner. The fresh charge-sheet dated 27-1-1999 served upon the petitioner is quoted hereunder:
CHARGE SHEET
The accused No. 870021695 Subedar Nawab Khan of 5th BN BSF is charged with-BSF ACT 1968
Section 46: COMMITTING OF CIVIL OFFENCE. THAT IS TO SAY CRIMINAL MISCONDUCT FOR HAVING A PUBLIC SERVANT IN POSSESSION OF PECUNIARY RESOURCES DISPROPORTIONATE TO HIS KNOWN SOURCE OF INCOME FOR WHICH HE CANNOT SATISFACTORY ACCOUNT FOR AN OFFENCE SPECIFIED IN SECTION 13(1)(e) OF PREVENTION OF CORRUPTION ACT 1988. PUNISHABLE UNDER SECTION 13(2) OF THE SAID ACT.
In that he,
between Jan 1997 and July, 1997 was found in possession of assets worth Rs 79,495/- (Rupees Seventy Nine Thousand four hundred and ninety five only) disproportionate to his known source of income which he could not satisfactorily account for.
Sd I(Mohan Dass Prem)
Place:Gokulnagar, Commandant.
Triputra (W) 5th Bn BSF
Dated the 27-1-99
3. It is also alleged by the petitioner that the second charge-sheet was never served upon him nor any Court of Inquiry was held and even the petitioner was not heard in terms of Rule 45B nor a fresh ROE] was ordered and prepared in terms of Rule 48 and without complying with these provisions of law vide order dated 22-12-1999 the General Security Force Court was convened for the trial of the petitioner in respect to the second charge. The General Security Force Court conducted the trial and convicted the petitioner and sentenced him to under go rigorous imprisonment for one year, dismissal from service and imposition of fine of Rs 65.000/-. The order of the General Security Force Court was submitted for confirmation to the competent authority who confirmed the conviction and sentence except the imposition of the fine of Rs 65,000/- which came to be waived off.
4. After the conviction by the General Security Force Court, and before the confirmation petitioner filed SWP No. 67/2000 for quashment of the conviction and sentence and proceedings of the General Security Force Court. During the pendency of the writ petition the confirming authority confirmed the sentence with the modification referred to above and communicated the same to the petitioner vide letter dated 5-4-2000. Petitioner accordingly withdrew the said writ petition with liberty to challenge all the proceedings including the order of the confirming authority and filed the present writ petition.
5. Petitioner seeks the quashment of charge-sheet dated 27-1-1999 whereby the petitioner was charged under Section 13(1)(e) of the Prevention of Corruption Act, 1988, order dated 22-12-1999 convening of General Security Force Court; proceedings of the General Security Force Court and the order passed by it convicting the petitioner and awarding sentence of dismissal from service, and rigorous imprisonment as also the order of conviction as communicated to the petitioner vide letter dated 5-4-2000 on the grounds noticed here-under:
(i) Recording of ROE three times is impermissible under rules;
(ii) The Commandant was not competent to frame/alter and issue fresh charge against the petitioner. That too without hearing him in terms of Section 45(B) of the Border Security Force Act;
(iii) No fresh ROE was prepared under Section 48 in respect to the second charge.
(iv) There has been gross violation of the procedure prescribed under Rules 45-B, 48, 51-A and 59 of the Border Security Force Rules, 1969.
6. It is on the above premises that the challenge is made to conviction and sentence awarded to the petitioner and consequent confirmation by the competent authority with a further prayer to treat the petitioner in service and provide him all service benefits.
7. Prayer is sought to be resisted by the respondents on the grounds that the petitioner has not exhausted the statutory remedy provided under Section 117 of the Border Security Force Act, 1968 read with Rule 167 of the BSF Rules, 1969, which is statutory in nature. It is alleged in the reply that the petitioner while officiating as Coy Commander “B” Coy of the Battalion and deployed in Tripura was found in possession of Rs 79,4957- disproportionate to his known sources of income. Between January, 1997 to July, 1997 he sent Rs 1,60,000/through Bank Drafts to his family members/relatives and friends and during this period the total emoluments received by him were Rs 81,2057-, as the salary being only source c>f income in the Border area. On receipt of various reports of such nefarious activities of the petitioner that he was engaged in abetting smuggling activities, a charge-sheet was framed against him. At the time of preliminary hearing as required under Rule 45-B of the BSF Rules, 1969 and after the preliminary hearing the Commandant directed Mr. S.K. Zutshi, 2nd Command to prepare record of evidence (ROE) in accordance with Rule 48. After ROE was completed and submitted to the Commandant as per Rule 51, he referred the matter to his Superior Officer alongwith ROE and charge-sheet and finding a prima facie case applied for convening of General Security Force Court. After receipt of the ROE alongwith the tentative charge-sheet the Inspector General, Border Security Force, the officer holding warrant to convene the General Security Force Court referred the case for advice of Law Officer in accordance with Rule 59 of the Border Security Force Rules, 1969. After receiving the advice of the Law Officer and peru sing the ROE recorded, he was convinced that a prima facie case for charge under Section 46 of the Act for committing offence punishable under Section 13(1)(e) of the Prevention of Corruption Act was made out against the petitioner. Inspector General, BSF accordingly directed convening of General Security Force Court for trial of the petitioner. The amended charge was served upon him. After the trial the petitioner was found guilty, he was convicted and sentenced accordingly. The sentence being subject to confirmation by the confirming officer under Sections 107 & 108 of the Border Security Force Act, 1968 same was confirmed by the Inspector General, BSF and promulgated on 5-4-2000 The allegation of violation of the procedure prescribed under BSF Act and the rules has been vehemently denied.
8. With a view to examine the validity of the orders impugned and the proceedings of the General Security Force Court on the basis of the allegations contained in the petition, it is deemed proper to refer to some of the provisions of the Border Security Force Act 1968 and the rules framed there-under:
44. Charge Sheet:- Where it is alleged that an officer or a Subordinate Officer has committed an offence punishable under the Act, the allegation shall be reduced to writing in the form set out in Appendix VI.”
45-B Hearing of charge against an officer and a subordinate officer – (1) (a) The charge against an officer or subordinate officer shall be heard by his Commandant:
Provided that charge against a Commandant, a Deputy Inspector General or an Inspector-General may be heard either by an officer commanding a Unit or Headquarters to which the accused may be posted or attached or by his Deputy Inspector-General, or his Inspector-General or, as the case may be, the Director General. (2)The charge sheet and statements of witnesses if recorded and relevant documents, if any, shall be read over to the accused.. Provided that where written statements of witnesses are not available the officer hearing the charge shall hear as many witnesses as he may consider essential to enable him to know about the case, (e) The accused shall be given an opportunity to make a statement in his defence.
(2) After hearing the charge under Sub-rule (1), the officer who heard the charge may-
(i) dismiss the charge; or
(ii) remand the accused for preparation of a record of evidence or preparation of abstract of evidence against the accused.
Provided that he shall dismiss the charge if in his opinion the charge is not proved or may dismiss it if he considers that because of the previous character of the accused and the nature of the charge against him, it is not advisable to proceed further with it. Provided further that in case of all offences punishable with death, a record of evidence shall be prepared.
48. Record of evidenced) The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so.
(2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him.
Provided that where statement of any witness at a Court of inquiry is available, examination of such a witness may be dispensed with and the original copy of the said statement may be taken on record. A copy thereof shall be given to the accused and he shall have the right to cross-examine if he was not afforded an opportunity to cross-examine the witness at the court of inquiry.
(3) After all the witnesses against the accused have been examined, he shall be cautioned in the following terms, “You may make a statement if you wish to do so, you are not bound to make one and whatever you state shall be taken down in writing and may be used in evidence,” After having been cautioned in the aforesaid manner whatever the accused states shall be taken down in writing.
(4) The accused may call witnesses in defence and the officer recording the evidence may ask any question that may be necessary to clarify the evidence given by such witnesses.
(5) All witnesses shall give evidence on oath or affirmation. Provided that, no oath or affirmation shall be given to the accused nor shall be cross-examined.
(6)(a) The statements given by witnesses shall ordinarily be The statements given by witnesses shall ordinarily be recorded in narrative from and the officer recording the evidence may, at the request of the accused, permit any portion of the evidence to be recorded in the form of question and answer.
(b) The witness shall sign their statements after the same have been read over and explained to him.
(6-A) The provisions of Section 89 of the Act shall apply for procuring the attendance of witnesses before the officer preparing the record of evidence.
(7) Where a witness cannot be compelled to attend or is not available or his attendance cannot be procured without an undue expenditure of time or money and after the officer recording the evidence has given a certificate in this behalf a written statement signed by such witness may be read to the accused and included in the record of evidence.
(8) After the recording of evidence is completed the officer recording the evidence shall give a certificate in the following form:
‘Certified that the record of evidence ordered by…Commandant…was made in the presence and hearing of the accused and the provisions of Rule 48 have been complied with”
51A. Disposal of case against an officer or a subordinate officer after preparation of record of evidence or abstract of evidence (1) Where an officer has been detailed to prepare the record of evidence or abstract thereof, he shall forward the same to the officer who ordered for its preparation.
(2) The officer who ordered for the preparation of record of evidence or abstract of evidence may, after going through the record or abstract of evidence-
(i) dismiss the charge; or
(ii) dispose of the case summarily if he is so empowered, or
(iii) refer the case to competent superior officer for disposal or
(iv) apply to a competent officer or authority to convene a General
Security Force Court for the trial of the accused. 59. Action by a superior authority on receiving an application for convening Court- (1) As soon as a superior officer receives an application for convening a Court, he shall scrutinize the charge and the evidence against the accused, where necessary in consultation with the Chief Law Officer or a Law Officer and he-
(i) shall direct commandant to dismiss the charge where the evidence against the accused is insufficient and further evidence is not likely to be available and may direct him to do so if he considers it inadvisable to proceed with the trial; or
(ii) may return the case to the commandant for being tried by a Summary Security Force Court or being dealt with summarily if he considers that the same can be adequately so tried or dealt with; or
(iii) may return, the case for- recording further evidence, if he considers the evidence recorded insufficient but considers that further evidence may be available.
(2) (a) In any other case he may either himself convene a Court or if he considers that a higher type of Court should be convened and he is not empowered to convene such a Court forward the case to a higher authority with recommendation that such Court may be convened.
(b) The higher authority on receiving the case may exercise any of the powers given in Sub-rule (1) of this rule.
Provided that a superior officer of higher authority before convening a General Security Force Court or a Petty Security Force Court shall take the advice of the Chief Law Officer or a Law Officer. Provided that a superior authority or higher authority while convening a Court may reframe the charge sheet on which the accused is to be tried.
9. After hearing the petition, the respondents were directed to produce the record.
10. From the record, it appears that the petitioner was heard on the charge by Commandant. On 30-9-1997 ROE was ordered on the same day and Mr. S.K. Zutshi, second in Command detailed for preparation of the ROE, ROE was held from 1-10-1997 to 4-10-1997 Petitioner was present during the ROE. He declined to cross- examine the witnesses. Additional ROE was ordered on 23-10-1997 which was held from 5-12-1997 to 8-12-1997 and the statements of three prosecution witnesses were recorded. Petitioner again declined to cross-examine them. Second additional ROE was ordered on 6-3-98 which was held on 8-3-1998 and 9-3-98. During this period two witnesses were recorded. Petitioner again declined to cross-examine the witnesses. Accused also did not call for any witness in defence. Commandant on receipt of the ROE applied for convening of the General Security Force Court for the trial of the petitioner. The Competent Authority i.e. the Inspector General, Border Security Force, HQ Jammu in exercise of his power under Rule 59, referred the case to Law Officer and with his consultation framed charge under Section 46 of the BSF Act 1968 for committing a civil offence under Section 13(1)(e) of the Prevention of Corruption Act 1998 and also directed the convening of General Security Force Court for petitioner’s trial. The Court held its proceedings between 3-1-2000 to 18-1-2000 and recommended the dismissal of the petitioner from service and imposed a sentence of one year Rigorous Imprisonment and fine of Rs 65.000/- vide order dated 19-1-2000. The sentence awarded except imposition of fine was confirmed by the Competent Authority on 4-4-2000 and promulgated on 5-4-2000. From the record it is also evident that the petitioner pleaded not guilty and as many as 12 prosecution witnesses were recorded. Petitioner was assisted by the Defence Officer. He cross-examined all witnesses. Petitioner raised an objection regarding the framing of second charge which was disallowed by the Court under Rule 73 of the BSF Rules, 1969.
11. On the basis of the scrutiny of the record and examination of the various provisions of the BSF Act and the rules quoted hereinabove, the grounds of challenge are dealt with as under:
(I) The contention of the petitioner is that the officer detailed to prepare the Record of Evidence has prepared the ROE three times, which is impermissible under law. ROE is prepared in terms of Rule 48. A perusal of this Rule do not suggest any prohibition for preparing the ROE in stages. Admittedly, ROE was prepared three times and it was only after the final stage of preparation of ROE that the same was submitted to the Commandant for his consideration. Such a recourse is illegal only if there is any prohibition in law. From the record it appears that the officer detailed for recording of evidence has recorded the evidence in three stages and at every stage the petitioner remained present. He was provided an opportunity to cross-examine the witnesses which he did not avail. Even he himself appeared as a witness and made a statement during the preparation of ROE. There is no rule which prescribe that the ROE should be recorded in one go and cannot be recorded in different stages. In any case no prejudice appears to have been caused nor any such prejudice has been pleaded in the writ petition. Rule 48 which deals with the preparation of ROE do not provide for recording of ROE in one go. I do not find that there is any basis for interference on this count.
(II) As far as the question of framing the fresh charge is concerned, it is also not disputed that initially the charge framed against the petitioner was for abetting the smuggling under Section 46 of the BSF Act 1968 read with Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. The set of allegations contained in the 1st charge dated 13-9-1997 and the subsequent charge dated 27-1-1999 are not at variance. The only change made is that instead of charging the accused for abetting smuggling, he has been charged for possessing the assets disproportionate to his known sources of income. There is slight change of mentioning of amount in both the charges. In the first charge amount shown is Rs 74,000/-, whereas in the second charge amount shown is Rs 79,495/-. However, in both the cases, it was a charge under Section 46 of the Border Security Force Act, 1968. The sum and substance of the allegations is same. One fails to understand how a Commandant who is entitled to frame 1st charge becomes in-competent to frame the second charge which is in fact not a fresh charge, but only the description of the offence is changed with same set of circumstances/allegations. Both the charges being under Section 46 and based upon same circumstances, it cannot be said that the Commandant becomes incompetent to frame the second charge.
(III) The contention of the learned Counsel that before amending the charge, it was obligatory upon the authorities to provide an opportunity of being heard to the petitioner. This contention also does not find support from any rule or any other provisions of law. It is not the case of the petitioner that for this amended charge any evidence other than the one collected during ROE was utilized or made basis thereof. Admittedly, the amended charge was based upon the same set of circumstances. There is no question of providing a fresh opportunity of being heard to the petitioner or providing him another hearing under Rule 45-B when the sum and substance of allegations remained the same. Similar question came up before the Apex Court in Union of India and Ors. v. Naik Subedar Baleshwar Ram and Ors. . In this case the Army Personnel was initially charged for offence under Section 63 of Army Act, namely, conduct prejudicial to good order and military discipline. For which he was heard under Rule 22 of the Army Rules. However, during trial by the General Court Martial he was called upon to face the charge of theft punishable under Section 52(a) of the Army Act. He was convicted by the Court Martial. High Court of Gauhati which heard the petition challenging the conviction and sentence quashed the proceedings of the Court Martial. In appeal before the Apex Court the judgment of the High Court was set aside. Apex Court held as under:
So far as the case against respondent No. 1 goes there was an inquiry under Rule 22. The point raised on behalf of respondent No. 1 in the High Court was different from the case made out by respondents 2 and 3. It has been pleaded that the inquiry under Rule 22 as against respondent No. 1 related to an offence which came under Section 63 of the Army Act, namely, conduct prejudicial to good order and military discipline, while the charge he was called upon to face in the General Court Martial was one of theft punishable under Section 52(a) of the Army Act. We have seen the evidence recorded in the inquiry under Rule 22. It is a fact that the allegation at the stage of inquiry under Rule 22 was described as prejudicial to good order and military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted the charge of theft. It is, therefore, clear that no prejudice has been caused to respondent 1 and the inquiry under Rule 22 and the trial before General Court Martial were over the self same facts.
12. Similar view was taken by a Division Bench of this Court in case Dharinter Singh v. Union of India and Ors. (LPA (SW) No. 270/98 decided on 17-12-2003) In this case the appellant was charged under Section 20(b) of BSF Act. However, he was tried for an offence under Section 40 of the Act by the General Security Force Court. The challenge to the conviction failed before the writ Court and in appeal preferred, the Hon’ble Division Bench while considering the question of amendment of the charge held as under:
It is true that initially the appellant was charged under Section 20(b) of the Act but, later on, after recording of the evidence, charge was amended to be one Section 40 of the Act. Learned Counsel for the appellant is not right in submitting that, before the charge came to be amended, the appellant was not given notice of the same. We have already noticed that before the trial took place, the appellant was served with a charge sheet, clearly mentioning therein that he is being tried for an offence under Section 40 of the Act. He was also supplied with the copies of proceedings and the statements of witnesses recorded in his presence.
XXX XXX
The procedure adopted in conducting the trial too does not point out that any prejudice whatsoever has been caused to the appellant.
13. Petitioner having been served with the charge which was based upon the same facts and circumstances and sum and substance of both the charges being same, the only distinction being the description of offence for which the petitioner was to be tried, no prejudice can be said to have been caused to the petitioner when the evidence used against the petitioner was the same as collected during ROE in his presence and the witnesses being also the same who appeared and deposed against the petitioner during the trial before the General Security Force Court.
(IV) Next contention of the petitioner that no ROE was prepared for amendment of the charge is also without any substance and deserves to be rejected for the simple reason that the allegations being same no fresh ROE was required.
(V) The contention of the petitioner that there has been violation of the Rules also cannot be accepted. I have already noticed the rules and the record produced before me. I find that the procedure prescribed by law has been followed and there has been no infraction of any rule or any other provision of law.
(VI) It is lastly urged by Mr. Sethi that the petitioner has not been provided opportunity by the confirming authority and even the communication dated 5-4-2000 communicating the confirmation of the conviction/sentence does not contain the reason and hence the conviction/sentence is liable to be set aside. As far as the question of providing opportunity by the confirming authority is concerned, there is no provision of law which require or provide for an opportunity by the confirming authority. Regarding the communication of the reasons by the confirming authority, the settled proposition of law as held by a Constitution Bench of the Apex Court in case S.N. Mukherjee v. Union of India :
For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post confirmation petition. Since we have arrived at the same conclusion as in Som Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is, therefore, rejected.
14. Apart from the above the power of Judicial review under Article 226 of the Constitution of India to interfere in conviction recorded by Court Martial is limited. In case Union of India and Ors. v. IC 14827 Major A. Hussain , the Apex Court considering the scope of judicial review held:
Though Court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings of a Court martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that Court martial remains to a significant degree, a specialized part of overall mechanism by which the military discipline is preserved.
It is for the special need for the armed forces that a person subject to Army Act is tried by Court martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A Court martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to Court martial in the Army Act, the Army Rules, Defence Service Regulations and other administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is riot jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court martial has jurisdiction over the subject matter and has followed the prescribed procedure and is within its powers to award punishment.
15. In view of the detailed discussion, the petitioner has failed to establish any valid ground for interference in the conviction and sentence as ordered by the General Security Force Court and confirmed by the competent authority. Therefore, the petition is dismissed without any order as to costs.