* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 25th April, 2011
+ W.P.(C) 4379/2007
DHIRENDRA KUMAR SINGH ..... Petitioner
Through: Mr.Arvind Kumar Tiwary, Advocate
versus
UOI & ORS. .....Respondents
Through: Mr.Anuj Aggarwal, Advocate with
Mr.Gaurav Khanna, Advocate
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.(Oral)
1. Vide order dated 14.11.2007 the Disciplinary
Authority i.e. the Commandant of the Unit, after petitioner‟s
trial at a Summary Security Force Court inflicted the penalty of
dismissal from service and the appeal filed has been turned
down vide order dated 14.12.2007; both orders being under
challenge.
2. On receipt of a complaint that on 18.10.2006
having quarreled with HC K.S.Pandian when HC
K.T.Bezgamwar was required to intervene and report the
matter to the Coy.Commander, petitioner assaulted HC
K.S.Pandian and caused an injury to HC K.T.Bezgamwar, the
officiating commandant i.e. the Deputy Commandant of the
W.P.(C) No.4379/2007 Page 1 of 9
Unit held proceedings under Rule 45 of the BSF Rules 1969
and finding a case for recording evidence, drew up a charge as
under:-
“CHARGE SHEET
The accused No.99002667 Const.Dhrendra Kumar
Singh „C‟ Coy.93 Bn.BSF is charged with:
BSF Act-1968
Section-20(a)
ASSAULTING HIS SUPERIOR OFFICERIn that he,
At about 1915 hrs on 18/10/06 at BOP Churakhori
assaulted No.88009708 HC K S Fandian and
No.76102034 HC K.T.Bezgamwar and injured them.
BSF Act-1868
Section 21(2)DISOBEYING A LAWFUL COMMAND GIVEN BY HIS
SUPERIOR OFFICERIn that he,
At about 1600 hrs on 18/10/06 at BOP Churakhori he
denied to perform the duty when order by Platoon HC
No.95262001 HC Vijay Singh.
BSF Act-1968
Section-26
INTOXICATIONIn that he,
At about 1600 hrs on 18/10/06, BOP Churakhori
found in a state of intoxication.”
3. It was directed that Assistant Commandant
R.S.Rangra would record the evidence at the stage of „Record
of Evidence‟ but realizing that the petitioner was directly under
W.P.(C) No.4379/2007 Page 2 of 9
Assistant Commandant R.S.Rangra who was the Post
Commander, it was directed that Deputy Commandant
D.S.Rawat would conduct the proceedings pertaining to
„Record of Evidence‟.
4. Brought before Deputy Commandant D.S.Rawat,
the record shows that the petitioner was given full opportunity
to cross-examine all witnesses who were examined.
5. 7 witnesses were examined at the Record of
Evidence; being HC K.S.Pandian, HC K.T.Bezgamwar,
Ct.Bangan Gouda, HC Vijay Singh, Assistant Commandant
Ranjit Singh, Dr.Jagdev Singh CMO and SI R.K.Sharma and
suffice would it be to note that Dr.Jagdev Singh deposed
having examined the petitioner on 4.7.2006 at about 21:25
hours and having found petitioner under influence of alcohol.
6. HC K.S.Pandian deposed of having seen petitioner
drink and picking up a quarrel with him and when HC
K.T.Bezgamwar intervened and contacted the senior officer
over the telephone, angered by the senior officer being
informed, petitioner assaulting HC K.T.Bezgamwar and injuring
him in the right eye.
7. HC K.T.Bezgamwar, fully corroborated HC
K.S.Pandian and deposed that petitioner assaulted him after
he contacted the Post Commander to inform petitioner being
drunk and quarreling with HC K.S.Pandian. Ct.Bangan Gouda
corroborated the previous two witnesses and so did HC Vijay
Singh. Assistant Commandant Ranjit Singh deposed of
receiving telephonic information from HC K.T.Bezgamwar of
petitioner being drunk and quarrelling with HC K.S.Pandian and
thereafter receiving information of petitioner having assaulted
W.P.(C) No.4379/2007 Page 3 of 9
HC K.T.Bezgamwar having the grouse of being the informant of
the incident. SI R.K.Sharma was a witness to the character
and with respect to the service record of the petitioner proved
3 penalties being levied in the past upon the petitioner who
had rendered 7 years‟ service till then.
8. We must note that petitioner was given full
opportunity to cross-examine all the witnesses and we must
highlight that while cross-examining the witnesses no line of
defence was taken that it was the petitioner who picked up the
telephone to contact the Post Commander and when HC
K.T.Bezgamwar tried to snatch the telephone from the
petitioner, during jostling, HC K.T.Bezgamwar got injured in the
eye. Relevant would it be to note that the line of cross-
examination adopted qua HC K.T.Bezgamwar was that when
he i.e. HC K.T.Bezgamwar was speaking to the Post
Commander, petitioner had tried to snatch the telephone
receiver and in the process HC K.T.Bezgamwar got injured.
9. At the Record of Evidence after the 7 witnesses
were examined and cross-examined, petitioner made a
defence statement as under:-
STATEMENT OF ACCUSED
I, No.99002667 CT Dhirendra Kumar states that:-
At about 1645 hrs on 18/10/06 I took 2peg Rum from HC
K.S.Pandian we both consumed the liquor then we took
dinner together we both were detailed for 1 st ACP duty.
After taking meal HC K.S.Pandian slept on his bed.
Post.Cmdr. HC Vijay Singh told me to wake up HC
K.S.Pandian. When I went to wake up HC Pandian he told
me who are you to wake up me let me sleep. I told HC
Vijay Singh that HC K.S.Pandian is abusing me and he is
not ready for the duty. HC Vijay Singh told me that both
of you may rest you will go in 2nd ACP. Then HC
W.P.(C) No.4379/2007 Page 4 of 9
K.S.Pandian asked me in loud voice whey you have woke
up me. Thus we started talking in loud voice other
person of the Barrack told us to not to make noise in the
Barrack, so we came out in open we were talking in loud
voice only. Then HC K.T.Bezgamwar came and reported
the matter to Coy Comdr.HC K.S.Pandian told me to stop
HC Bezgamwar from reporting against us. It went to HC
K.T.Bezgamwar I told him to not to report but he reported
the matter. Then I took the telephone to take to Coy
Comdr but he stopped me and pushed me away from the
telephone and tried to snatch telephone handset from
me. In that hustle-bustle HC K.T.Bezgamwar got injury in
his right eye. I never hit him with boxing but I do not
know how he got the injury. HC K.T.Bezgamwar shouted
that „meri aankh main mar diya” then sentry reached
there. HC K.S.Pandian also came there and started to
call others that CT D.K.Singh has beaten HC
K.T.Bezgamwar and save him.
HC K.S.Pandian told me that you have injured the old
man. Then I went to HC K.T.Bezgamwar and apologized
and asked him to forgive me but he did not listen to me
and told that I have reported the matter to Coy Cmdr.
HC K.S.Pandian came to me and told why you has injured
the old man and started to quarrel with me I hit him with
boxing. He ran away fell on the ground and got injuries.
He went towards the fire-fighting print and took the Pick-
axe I tried to snatch Pic-axe from hi. When I snatched
Pic-axe from him he got injury on is head due to wooden
handle. Then I went out side the gate and I was waiting
for Coy Comdr. Coy Comdr. reached there I wished him
and told that I have consumed 2 peg liquor due to which
the incident has happened I am standing out side the
gate because I am afraid of HC K.S.Pandian, I have
consumed the liquor for which you can punish me. If was
the more Practicein Chura Khuri BOP. No body from the
post was ready to perform duty with HC K.S.Pandian.
Normally I was detailed with him for duty. He used to
consuming liquor in the ACP. So many time I have
requested the post Comdr. to not to put me on duty with
HC K.S.Pandian.
The above statement is read over to the accused in the
language he understands and signs it as correct.”
W.P.(C) No.4379/2007 Page 5 of 9
10. The Record of Evidence was placed before the
Commandant as per the requirement of Rule 51. A formal
charge sheet was thereupon drawn dropping the third charge
on which the Record of Evidence was drawn i.e. the charge
sheet at which trial was held being the charge sheet dated
10.11.2006 lists only two charges as under:-
“CHARGE SHEET-I
APPENDIX-IV
[Rule 52(2)]
The accused No.99002667 Const.Dhrendra Kumar
Singh „C‟ Coy.93 Bn.BSF is charged with:
BSF Act-1968
Section-20(a)
ASSAULTING HIS SUPERIOR OFFICERIn that he,
At about 1915 hrs on 18/10/06 at BOP Churakhori
assaulted No.88009708 HC K S Fandian and
No.76102034 HC K.T.Bezgamwar and injured them.
BSF Act-1868
Section 21(2)DISOBEYING A LAWFUL COMMAND GIVEN BY HIS
SUPERIOR OFFICERIn that he,
At about 1600 hrs on 18/10/06 at BOP Churakhori he
denied to perform the duty when order by Platoon HC
No.95262001 HC Vijay Singh.”
W.P.(C) No.4379/2007 Page 6 of 9
11. As per law, the Commandant had to preside over
the Summary Security Force Court and when brought before
the Commandant and charge(s) read out, the petitioner
pleaded guilty, as to be found in the original record produced.
12. Noting that the petitioner had assaulted a superior
officer and disobeyed orders of a superior officer; considering
the past record, penalty of dismissal from service has been
inflicted.
13. It is urged by learned counsel for the petitioner that
the Commandant could not have changed the officer who had
to record the Record of Evidence and thus urges that since the
trial of the petitioner was predicated at the evidence recorded
at the Record of Evidence, the trial is vitiated.
14. The argument is rejected for the simple reason no
Rule prohibits the Commandant to replace the officer who has
been nominated to conduct proceedings pertaining to Record
of Evidence. The justification of the respondents to change the
officer to conduct the Record of Evidence is sound. Indeed,
Assistant Commandant R.S.Rangra was the Post Commander
of the petitioner and lest petitioner alleged a bias on account
of his having personal knowledge of the incident, there is good
justification to replace him and direct Record of Evidence to be
prepared by another officer i.e. Deputy Commandant
D.S.Rawat.
15. The second plea urged is that during Record of
Evidence the petitioner was declined an opportunity to
produce defence witnesses is negated for the simple reason
we do not find any such request being ever made. On the
contrary after 7 witnesses of the prosecution were examined,
W.P.(C) No.4379/2007 Page 7 of 9
on 2.11.2006, under the signatures of the petitioner it stands
clearly recorded that with reference to the provisions of Rule
48 petitioner was asked whether he wished to call any witness
to which the petitioner answered: „No. I do not wish to call any
witnesses.‟ That apart, neither in the writ petition nor during
arguments has any name been disclosed as the ones whom
petitioner desired to be examined as his witnesses.
16. It is then urged that Assistant Commandant
V.L.Joshi was thrust upon the petitioner to act as his friend at
the trial.
17. Record shows that an opportunity was given to the
petitioner before the trial commenced, to nominate any
person, even a legal practitioner, to defend the petitioner at
the trial and on 13.11.2006, in writing, the petitioner informed
that he does not desire to nominate anybody to act as the
friend of the accused and for this reason Assistant
Commandant V.L.Joshi was suo moto nominated to act as the
friend of the accused.
18. It is urged that the petitioner never pleaded guilty
and his signatures were obtained on blank papers and on
some papers on which something was written in English.
19. The plea is not acceptable to us for the reason
record shows that Assistant Commandant V.L.Joshi was acting
as the friend of the accused and if no trial as alleged took
place and instead petitioner was made to sign blank papers or
his signatures were obtained on pre-typed pages, said officer
would have certainly objected to what was happening.
20. Suffice would it be to state that at the stage of
Record of Evidence sufficient damaging incriminating evidence
W.P.(C) No.4379/2007 Page 8 of 9
has surfaced against the petitioner and his version in defence
is hardly worthy of any credence and it appears to be a case
where the petitioner thought it best to plead guilty and then
raised issues with respect to the plea of guilt.
21. Be that as it may, we prefer to go by the record
which shows that the petitioner pleaded guilty at the trial.
22. No other ground has been urged at the hearing and
thus we dismiss the writ petition noting that in his 7 years and
2 months‟ service this was the 4th misdemeanour committed
by the petitioner and thus the penalty cannot be called
disproportionate.
23. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
APRIL 25, 2011
mm
W.P.(C) No.4379/2007 Page 9 of 9