* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 25th July, 2011
Judgment Delivered On: 18th August, 2011
+ W.P.(C) 1199/1998
M.S.DABAS ..... Petitioner
Through: Mr.Anil Gautam, Advocate
versus
UOI .....Respondent
Through: Mr.Romil Pathak, Advocate for
Dr.Ashwani Bhardwaj, Advocate
and Mr.Bhupinder Sharma,
Dy.Cmdt., BSF
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
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.
1. Appointed as a constable with Border Security Force in
the year 1976 and attached to the 55th Battalion, the petitioner
earned a promotion to the rank of Sub.Inspector (Clerk) in the
year 1993. Pursuant to secret information received in
December 1995 by SI Sunil Kumar who was working in the
Vigilance Branch that the petitioner had secured recruitments
for 3 persons, namely, Sucha Singh, Sunder Singh and Raj
W.P.(C) No.1199/1998 Page 1 of 13
Kumar in BSF in lieu of money received by him, a preliminary
enquiry was conducted by SI Sunil Kumar.
2. During the course of the preliminary enquiry apart from
the petitioner, 6 persons named Sunder Singh, Sucha Singh,
Raj Kumar, Rajpal, Ct.Rajesh and Nk.Inder Pal Singh were
examined.
3. Sunder Singh and Sucha Singh stated that the petitioner
got them recruited in BSF for a consideration of `30,000/- each
and Raj Kumar stated that the petitioner got him recruited for
a consideration of `25,000/- which was paid by his uncle Rajpal
who likewise made a statement confirming what was said by
Raj Kumar. Ct.Rajesh stated that he had introduced Sucha
Singh, Raj Kumar and Raj Pal to the petitioner who secured
employment for Sucha Singh and Raj Kumar by taking a sum
of `30,000/- and `25,000/- respectively from them.
Nk.Inderpal Singh stated that Sucha Singh was his wife‟s
cousin and he had introduced him to Ct.Rajesh, who in turn
introduced Sucha Singh to the petitioner from whom petitioner
took `30,000/- for securing employment in BSF.
4. As per the petitioner, a fact not denied by the
respondents, the petitioner was taken into custody by the
vigilance branch in the morning of 11.01.1996 and remained in
the custody of the vigilance branch all day throughout and was
confined in the room of the vigilance branch during the
intervening night of 11th and 12th January, 1996. In the morning
of 12.1.1996 being produced before Additional DIG, Vigilance,
M.Zia-u-allah petitioner made a confessional statement Ex.S in
W.P.(C) No.1199/1998 Page 2 of 13
which he purportedly admitted having received `30,000/- each
to secure employment for Sunder Singh and Sucha Singh and
`25,000/- to secure employment for Raj Kumar.
5. Since incriminating evidence surfaced implicating the
petitioner, the commandant of the battalion to which the
petitioner was attached drew up a charge sheet and complying
with Rule 45 B of the BSF Rule 1969 directed record of
evidence to be prepared. Deputy Commandant Wajid Ali was
detailed as the Recording Officer for preparing the Record of
Evidence.
6. Sucha Singh, Sunder Singh, Raj Kumar, Raj Pal, Ct.Rajesh
and Nk.Inder Pal Singh were examined and made statements
identical to the one they had made during preliminary inquiry
before Inspector Sunil Kumar, who also made a statement that
on 12.1.1996 statement Ex.S was made by the petitioner
before the Additional DIG, M.Zia-u-allah in the presence of two
independent persons, SI M.S.Bisht and Ct.Shyaji Ramina.
7. In compliance with Rule 48 of the BSF Rules 1969,
petitioner was given an opportunity to make a statement and
he made the statement Ex.„R‟, wherein he stated that on
11.01.1996 he was brought to the „G‟ (vigilance) department
by Inspector Sunil Kumar and other officers and was forced to
make a statement, which statement he alleged had not been
produced. He further stated that on 12.01.1996 he met M.Zia-
u-allah and made the statement Ex.„S‟ before him and that he
told M.Zia-u-allah that he had paid a sum of `60,000/- to
W.P.(C) No.1199/1998 Page 3 of 13
S.R.Singh in respect of the recruitment of Sucha Singh, Sunder
Singh and Raj Kumar.
8. Considering the record of evidence, a decision was taken
that the petitioner be tried by a General Security Force Court
and a charge sheet was issued against the petitioner listing 3
articles of charges, which read as under:-
“CHARGE SHEET
The accused No.760028975 ST/CLK Mukhtiar Singh
Dabas of 55 Bn. BSF attached to 25 Bn. BSF is charged
with:-
FIRST CHARGE
BSF ACT
SEC: 41 (e) ACCEPTING FOR HIMSELF A
GRATIFICATION AS A MOTIVE FOR
PROCURING ENROLMENT OF A
PERSONIn that he,
at New Delhi, in between March ‟95
and Aug ‟95, while working as SI/CLK
in Training Dte at FHQ accepted a
sum of `30,000/- (Rupees Thirty
Thousand only) from No.95455480
Rect/Ct Suchcha Singh, a gratification
as a motive for procuring enrolment
of the said Rect/Ct Suchcha Singh in
BSF.
SECOND CHARGE
BSF ACT
SEC: 41 (e) ACCEPTING FOR HIMSELF A
GRATIFICATION AS A MOTIVE FOR
PROCURING ENROLMENT OF A
PERSONW.P.(C) No.1199/1998 Page 4 of 13
In that he,at New Delhi, during Aug. ‟95 while
working as SI (Clerk) in Training Dte
at FHQ accepted a sum of `30,000/-
(Rupees Thirty Thousand only) from
No.95455479 Rect/Ct Sunder Singh a
gratification as a motive for procuring
enrolment of the said Ct. Sunder
Singh in BSF.
THIRD CHARGE
BSF ACT
SEC: 41 (e) ACCEPTING FOR HIMSELF A
GRATIFICATION AS A MOTIVE FOR
PROCURING ENROLMENT OF A
PERSONIn that he,
at New Delhi, in between March 1995
and Sept. 1995 while working as SI
(Clerk) in Training Dte at FHQ
accepted a sum of `25,000/- (Rupees
Twenty Five Thousand only) from Shri
Rajpal, resident of Nangal Dewat, a
gratification as a motive for procuring
enrolment of No.95455475
Rect/Ct.Raj Kumar in BSF.”
9. At the trial 13 witnesses were examined by the
prosecution.
10. Sucha Singh PW-1, Ct.Rajesh PW-2, Nk.Inder Pal Singh
PW-3, Sunder Singh PW-4, Raj Kumar PW-5 and Rajpal PW-6,
turned hostile and did not support the case of the prosecution.
They resiled from the statements made by them during inquiry
and at the Record of Evidence and stated that they were
W.P.(C) No.1199/1998 Page 5 of 13
forced to make the statements. On being questioned whether
they had made any complaint to any authority of being forced
to make any statement, they admitted that they did not make
any such complaint.
11. Dy.Cmdt.Wajid Ali PW-7, deposed that he prepared the
Record of Evidence and that no witness was at any time
pressurized by him or any other officer to make a particular
statement and that statements made by PW-1 to PW-6 were
recorded in his presence during proceedings pertaining to
Record of Evidence.
12. Sub.Insp. Sunil Kumar PW-8, deposed that during
preliminary inquiry conducted by him PW-1 to PW-6 had made
statements which he had correctly recorded and that
statement Ex.S i.e. the confessional statement of the
petitioner was voluntarily made by the petitioner before M.Zia-
u-allah.
13. On being cross-examined about the presence of the
petitioner in the G Department on 11.01.1996, he stated
(Quote): „It is correct that the accused was brought to my
office at about 1000-1100 hrs on 11 Jan 1996 and was kept in
„G‟ office for the night. Myself and my staff and other
witnesses and personnel connected with the case stayed for
the night at „G‟ Dte. It is correct that accused was dispatched
to 25 Bn BSF Chhawla Camp in the evening of 12 Jan 96 (exact
time I do not remember)….We had detained the accused for
the night of 11th Jan 96 on the conception that he will not come
to the office on 12 Jan 96. I had apprehension that the accused
W.P.(C) No.1199/1998 Page 6 of 13
will either desert or approach somebody to save himself. He
was detained for night with the permission and guidance of Sh.
Ziaulla AD (G). I had no apprehension that the accused will run
away during the day of 11th Jan 96 from the „G‟ Dte because
myself and my staff was present there and it was not possible
for him to run away.‟
14. ASI/Ciph Randhir Singh PW-9, deposed that the
statement Ex.„R‟ (made by the petitioner during Record of
Evidence) was voluntarily made by the petitioner in his
presence. SI M.S.Bisht PW-10, deposed that the statement Ex.
„S‟ was voluntarily made by the petitioner in his presence.
Additional DIG (Vigilance) M.Zia-u-allah PW-12, deposed that
on 12.01.1996 the petitioner had voluntarily made the
statement Ex.„S‟ before him.
15. The petitioner did not lead any evidence in defence. He
however submitted a written statement before the GFSC
wherein he denied having made any confession or having ever
received any money to secure employment in BSF. He stated
therein that he was falsely implicated at the instance of
Insp.Sunil Kumar because he had not provided details of cases
pending against one S.N.Marwah to Insp.Sunil Kumar. He
stated that after being detained in the G department he was
tortured the entire night and was forced to make a statement
to Insp.Sunil Kumar, which was not to the satisfaction of
Insp.Sunil Kumar and therefore he was taken to the office of
M.Zia-u-allah and was forced to make the statement Ex.-S.
W.P.(C) No.1199/1998 Page 7 of 13
16. The GSFC returned a verdict of guilt qua all 3 charges
and vide sentence order dated 09.12.1996, levied the
following sentences upon the petitioner:- (i) forfeiture of ten
years of service for the purpose of promotion; (ii) forfeiture of
ten years of service for the purposes of increased pay and
pension and (iii) severe reprimand.
17. The record of the case was forwarded to the Inspector
General, BSF for the purposes of the confirmation of the
finding and sentence of the GFSC in terms of Section 108 of
the BSF Act. Vide order dated 04.12.1996 the Inspector
General, BSF in exercise of his power under Section 113 of the
BSF Act, directed the GFSC to consider revising the sentence
of forfeiture of ten years of service for the purpose of
promotion as he was of the opinion that the said sentence was
too harsh. Vide order dated 09.12.1996 the GFSC modified the
sentence to that of forfeiture of two years and ten months of
service for the purpose of promotion. The record of the case
was again forwarded to the Inspector General for the purposes
of confirmation of the finding and sentence of the GFSC, which
were confirmed vide order dated 01.01.1997.
18. Aggrieved by the finding and sentence awarded by the
General Security Force Court which stood confirmed by the
Inspector General, the petitioner preferred a petition under
Section 117(2) of BSF Act to the Directorate General BSF,
which petition was rejected vide order dated 31.07.1997.
19. The present writ petition accordingly lays a challenge to
the conviction and sentence dated 09.12.1996 and the order
W.P.(C) No.1199/1998 Page 8 of 13
dated 31.07.1997 rejecting the statutory petition filed by the
petitioner.
20. From the narratives hereinabove noted it is apparent that
the incriminating evidence would be petitioner‟s confessional
statement Ex.-S recorded in the morning of 12th January 1996,
which petitioner admits to have made before Additional DIG
(Vigilance) M.Zia-u-allah, but claims the same to be extracted
as a result of being tortured the entire night when he was in
the custody of Insp.Sunil Kumar. We also have to take into
account the fact that during Record of Evidence the petitioner
made a statement Ex.-R in which he once against confessed to
have received money to secure employment for Sucha Singh,
Sunder Singh and Raj Kumar. Additionally, we have evidenced
that PW-1 to PW-6, even at the stage of Record of Evidence
stood by the indictment and stated as told to them to
Insp.Sunil Kumar during preliminary inquiry, but at the trial
resiled from their statement.
21. As regards PW-1 to PW-6 resiling from their previous
statements, it assumes importance to take note of the fact
that it was their compulsion to do so for the reason if they had
stood by their earlier statements, Sucha Singh, Sunder Singh
and Raj Kumar would have lost their jobs as they would have
admitted having paid bribe to secure employment. This has to
be kept in view.
22. In the decision reported as 112 (2004) DLT 301 (DB)
Amar Singh Bhati Vs. UOI & Ors. with respect to the power of
W.P.(C) No.1199/1998 Page 9 of 13
this Court under Article 226 of the Constitution of India, it was
observed:-
“21. We may state at this stage that we are conscious
of our limited power of judicial review of such orders.
We are not sitting as Appellate Authority over the
findings of the GSFC or the Central Government
deciding post confirmation petition/appeal. However,
as already pointed out above, even while doing this
judicial review if the reasons are available in the
findings recorded by the GSFC, the task of the Court is
easier. The Court is required, in exercise of its power
under Article 226 of the Constitution of India, to
examine as to whether in the decision making process,
principles of natural justice were complied with and
further the order is not irrational, unreasonable or
arbitrary and that it is not perverse, However, when
there are no reasons in support of the finding recorded
by the GSFC, it is difficult, nay, impossible, to
undertake this exercise simply by looking into the
order. One will have to look into the records for this
purpose. It may be mentioned here that the case of the
petitioner was, which was vehemently argued by
learned Counsel for the petitioner, that the prosecution
case was full of contradictions and in fact the material
which was inadmissible in law was taken into
consideration and if that material is excluded, it was a
case of ‘no evidence‟.”
23. Now, whether a confession is voluntary or the result of an
inducement or an undue pressure, is a question of fact. Thus,
our job would be to determine whether at the trial, the
question of fact to be decided by the Court was properly
considered with respect to the relevant facts and
circumstances enwombing the confession and the law
applicable.
24. The fact enwombing the confession Ex.-S was the
petitioner being in the custody of Insp.Sunil Kumar since the
W.P.(C) No.1199/1998 Page 10 of 13
morning of 11th January 1996 and being detained during the
night and the confession being made the next morning on 12 th
January 1996. We find that the law officer, in his advice to the
GSFC has rightly drawn the attention of the Court to the law
and the relevant facts. This is evident from the advice to the
Court, which we quote as under:-
“In the instant case 2 different versions are before you
where the prosecution witnesses have said that they
were beaten up threatened and pressure was
exercised on them at CGO complex and during RCE.
Whereas it has been denied by Sub Sunil Kumar who
recorded their statement at CGO Complex and
Sh.Wajid Ali, Recording Officer before the court. You
may take into account the functioning of „G‟ Dte of
BSF and interest of the witnesses deposing before the
Court. A mere assertion by the accused that he was
threatened or tortured or inducement was offered to
him can be accepted as true without more. However
the length of time during which the accused was in
custody must be taken into consideration while
deciding voluntary nature of his confession statement.
About it Sub.Sunil Kumar has explained why the
accused was detained for that night at CGO Complex.
If you feel after consideration all the attendant
circumstances of the case that such confessional
statement was not voluntary you must reject the same
and should not act upon it being admissible. In case
you are satisfied about the voluntary nature of such
confession you can admit it and can act upon it also.”
25. It is thus apparent that at the trial, all relevant facts
which had a bearing on whether the confession was voluntary
or not were brought on record and attention of the Court was
drawn to the said facts. The Court returned a verdict of guilt
and since the verdict relates to a question of fact and having
noted that there is no taint with respect to the ascertainment
W.P.(C) No.1199/1998 Page 11 of 13
of the said fact; highlighting once again that attention of the
Court was drawn specifically to the fact that the petitioner was
detained the previous night and that the same had to be
considered by the Court while deciding whether the confession
was voluntary, it is our compulsion to hold that this Court
cannot sit over judgment over the decision of the General
Security Force Court.
26. As held in the decision reported as 1985 SCC (Cri) State
of U.P. Vs. N.K.Antony, if evidence of extra-judicial confession
comes from the mouth of witnesses who are unbiased and not
even remotely inimical to the accused and in respect of whom
nothing is brought out which may tend to indicate that they
may have a motive for attributing an untruthful statement to
the accused, such extra-judicial confessions can be accepted
and can be the basis of a conviction and one need not search
for corroboration.
27. That the petitioner never retraced the confession Ex.-S
till the trial commenced is a fact not in dispute. He never
wrote to any authority that he was tortured or forced to make
a confession. Even at the Record of Evidence he reiterated the
confession and never complained to anyone that his statement
Ex.-R recorded during Record of Evidence was either incorrect
or he was forced to so state. It also assumes importance that
PW-1 to PW-6 never complained to any authority after Record
of Evidence was prepared that they were forced to make
statements against the petitioner. The Record of Evidence
was prepared 23.1.1996. The trial of the petitioner
commenced on 28.5.1996. Between 23.1.1996 till 28.5.1996
W.P.(C) No.1199/1998 Page 12 of 13
PW-1 to PW-6 had enough time to inform that they were
compelled to make wrong statements at the Record of
Evidence. It was their compulsion to retrace what they had
said earlier on for the reason Sucha Singh, Sunder Singh and
Raj Kumar may have lost their jobs if before the Court they
admitted having secured employment by paying a bribe. We
therefore conclude by holding that there is sufficient evidence
to sustain the verdict of guilt and within the parameters of
jurisdiction of judicial review, not being required to sit in
appeal as an appellate court, nothing has been shown which
requires us to grant relief to the petitioner and thus we dismiss
the writ petition.
28. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 18, 2011
mm/rk
W.P.(C) No.1199/1998 Page 13 of 13