JUDGMENT
D.K. Jain, J.
(1) The petitioner, who was enrolled as a Constable in the Border Security Force(for short the B.S.F.) on 23 July 1984, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ, order or direction in the nature of certiorari quashing the order passed by respondent No.4, the Commandant 51 Bn, B.S.F., Bhikhiwind, Distt. Amritsar on 17 June 1991, ordering the petitioner to undergo rigorous imprisonment for a period of six months and dismissing him from service with immediate effect, with a further direction that the petitioner will not be entitled to draw pay and allowances, except ration money, for the period he was kept in force custody prior to the date of order of sentence. A further writ, order or direction in the nature of mandamus is sought directing the respondents to re-instate the petitioner in service. There were four charges against the petitioner, for which he was tried by a Petty Security Force Court, found guilty and sentenced. Three charges were under Section 40 of the Border Security Force Act (for short the Act) : ” An act prejudicial to good order and discipline of the force” and the 4th charge under Section 46 of the Act “for having committed a civil offence being a public servant accepting from a person for himself gratification other than legal remuneration as a reward for showing favor in the exercise of his official functions punishable under Act 1988”.
(2) In all there are four respondents, including the said 4th respondent. The Union of India through Secretary, Ministry of Home Affairs, is the first respondent, Director General, B.S.F. and Deputy Inspector General, B.S.F. are the 2nd and 3rd respondents respectively.
(3) The facts leading to the charges and imposition of the sentence, in brief, are that in May 1990 the petitioner was deployed at Border outpost, Daoke, Distt. Amritsar and was detailed on Nakabandi duties on 7, 12, 24 and 31 May 1990. In June 1990 he was summoned back from leave and on reaching the Unit, his statement was recorded wherein he confessed that he had taken Rs. 10,000.00 from one Salwinder Singh in consideration of allowing him to cross the border for purposes of smuggling. In August 1990, the petitioner was put to trial by convening Petty Security Force Court for the following charges: First Charge: An Act Prejudicial to Good Order and Discipline of the Force In That He, at Bop Daoke, on 12 May, 1990, between 2200- 2330 hrs. improperly and without authority, permitted Shri Salwinder Singh alias Sindhu of village Daoke, P.S. Gharinda, Distt. Amritsar, to cross over the International Border. Second Charge; An Act Prejudicial to Good Order and Discipline of the Force – In That He, at Bop Daoke, on 24/25 May, 1990, at about 2130 hrs. improperly and without authority permitted Shri Salwinder Singh, alias Sindhu of Village Daoke, P.S. Gharinda, Distt. Amritsar, to cross-over the International Border. Third Charge ; An Act Prejudicial to Good Order Discipline of the Force In That He, at Bop Daoke, on 31 May, 1990, at about 2130 hrs. improperly and without authority permitted Shri Salwinder Singh alias Sindhu of village Daoke, P.S. Gharinda, Distt. Amritsar, to cross-over the International Border. Fourth Charge; Committing a Civil Offence that is to say being a Public Servant accepting From a person for himself Gratification other than legal remuneration as a Reward for Showing favor in the Exercise of his official Functions Punishable under section 7 of the Prevention of Corruption Act, 1988 In That He, at Bop Daoke, on 7 May 1990, at about 2100 hrs. accepted a sum of Rs.10,000.00 (Rupees ten thousand only) from Shri Salwinder Singh alias Sindhu of village Daoke, P.S. Gharinda, Distt. Amritsar, for permitting the said Shri Salwinder Singh to cross-over the International Border.”
(4) The Court found him guilty of all the four charges and awarded the aforesaid sentence, which was confirmed by the competent authority and was promulgated to the petitioner on 17 June 1991. Statutory petition under Section 117(2) of the Act, allegedly made on 6 August 1991, is stated to be still pending.
(5) Although in the petition the impugned order has been challenged on various grounds, but before us learned counsel for the petitioner has urged only two grounds, viz., (i) the confessional statement had been extorted by torturing the petitioner and the same was also not properly recorded as Section 6 of the Oaths Act, 1969 had not been followed and (ii) there is no evidence to support the charge of acceptance of illegal gratification from Salwinder Singh, who although had made a statement but was not produced, thus depriving the petitioner an opportunity of cross-examination. It was submitted by the learned counsel that apart from the fact that the confessional statement was not recorded on affirmation, contravening the provisions of Section 6 of the Oaths Act, the said confessional statement having been recorded under duress, it attracted the frown of Section 24 of the Evidence Act and, therefore, in the absence of corroborative evidence, it could not otherwise be relied upon by the respondents.
(6) There is nothing on record to support the defense of duress or extortion of confessional statement. On the copy of the confessional statement, placed on record (page 111), there is no indication that the statement is on affirmation. But this being not the requirement of Section 164 of the Code of Criminal Procedure or under the Act or the Rules made thereunder, non-administering of oath in the process does not per se vitiates it. Infact giving oath or solemn affirmation before recording confession would have vitiated the confession as it would have amounted to compelling the maker to give evidence against himself. Even otherwise, the factum of statement having not been denied by the petitioner, and no such plea having been raised either in the statutory representation made by the petitioner or in the present petition, the plea raised is belated and carries little conviction. It cannot be assailed on the ground that there was omission to administer oath or make an affirmation. It is not the case of the petitioner, and there is no suggestion either, that the confessional statement was recorded by an officer who had animus against him.
(7) We do not find any merit in the second contention of the petitioner that there is no evidence to support the charge of acceptance of gratification. It is true that Salvinder Singh has not been examined but it cannot be said that his non-production is fatal or that there is no evidence to support the charge. We find that the deposition of PW.9 corroborates the involvement of the petitioner in permitting some persons to cross-over the international border for purposes of smuggling. We are not sitting as a Court of appeal and cannot re-appraise the evidence to record a finding as to whether the charges against the petitioner have been proved or not.
(8) It is well settled that ordinarily civil courts have no jurisdiction to interfere with the administration of law applicable to military or paramilitary forces, by the properly constituted bodies under the relevant statutes, acting within their jurisdiction. Extra-ordinary jurisdiction of this Court under Article 226 of the Constitution could be invoked only if there is an error of jurisdiction or violation of principles of natural justice or manifest error of law apparent on the record or in a case where the impugned order has been made on the basis of mala fides or bias. In the instant case, we do not find any such defect either in the proceedings taken against the petitioner or in the impugned order. There is no ground to interfere. There is no merit in the petition and the same is accordingly dismissed in liming.
