JUDGMENT
S.K. Gupta, J.
1. The petitioner was appointed as Constable Driver on 16/08/1982 and posted in 10th Bn. B.S.F. He was promoted as Lance Naik in February, 1995 and further promoted as Head Constable in May, 2001. While he was posted at S.T.C. BSF, Udhampur, it is stated that a false charge was framed against him under Section 20(A) of the BSF Act on the allegation of using criminal force to his superior officer, kicked on the scrotum and punched on the chest and face with his fist of IRLA No. 19350148 Shri Banu Pratap Singh, Deputy Commandant of the same S.T.C. at 6:40 Hours on 03/11/2001. The petitioner was tried by the Summary Security Force Court (hereinafter for short referred to as ‘Summary Court’) on 12th/13th November, 2001 on the said charge of using criminal force on his superior officer. He was, however, found guilty of having used the criminal force against his officer by the Summary Court.
2. The grievance of the petitioner is that neither the offence report, containing the allegation in the format provided in Appendix-4, has been prepared, nor the procedure prescribed in Rules 43 to 49 of the B.S.F. Rules, 1969 has been followed by the Summary Court in recording the evidence and holding the petitioner guilty of the charge. Consequently, the finding and the sentence, promulgated by the Commandant that the petitioner be reverted to the rank of Constable is legally unsustainable. It is also stated that the petitioner has been imposed a major punishment of reversion without affording any opportunity of being heard during the conduct of the proceedings under the Summary Court. The petitioner was neither summoned nor given an opportunity to prove his innocence. The petitioner has also not been provided with the abstract of evidence nor was given an opportunity to make the statement under Rule 49 of the B.S.F. Rules, 1969. It is also stated that both the inquiry conducted and the charge-sheet framed against the petitioner are in contravention of the provisions of law in general and the B.S.F. Rules framed thereunder in particular. The petitioner has even not been given an opportunity to produce any witness in his defence. The respondents also did not apprise him about his entitlement to take the assistance of a person even the legal practitioner of his choice. That the notice of proposed punishment was not even given to the petitioner and, thus, deprived him of his right to file the reply or explanation. The petitioner further stated that the statements of the witnesses were recorded during the proceedings of Summary Court in his presence, but no sufficient opportunity was given to him to defend his case properly. The petitioner, however, requested the Director General, BSF, for personal hearing before his appeal is decided. The appeal of the petitioner, however, was rejected without hearing him, being devoid of merit. The action of the respondents, firstly, in imposing the punishment of reverting the petitioner to the rank of Constable vide order dated 13/11/2001, and further order dated 28/01/2003 issued by the Director General BSF, by which appeal of the petitioner has been rejected, is the subject matter of challenge in this writ petition.
3. The claim of the petitioner stood contested by the respondents on variety of grounds. It is stated that the petitioner was tried by the Summary Court on a charge of abusing his superior officer. On 03/11/2001, when Sh. Bhanu Partap Singh Chauhan, Dy. Commandant, accompanied by Sh. A.B.K. Singh, Dy. Commandant and Sh. H. S. Rawat, Assistant Commandant, was returning from physical training, the petitioner met and informed him about non availability of guard for School Bus. Sh. Bhanu Pratap Singh Chauhan, Dy. Commandant, told the petitioner that orders have already been issued to Rojnamcha and the petitioner should ensure that the guard is quickly provided. It is further disclosed that the petitioner, who happens to be the bus driver at the relevant time, did not obey the order of the Deputy Commandant and used insubordinate language and criminal force by kicking him in his scrotum and caused injury to his hand with a screw driver held by the petitioner. After preliminary hearing, record of evidence was ordered under Rule 45. The petitioner was thereafter tried by Summary Court on a charge of using criminal force on his superior under Section 20(A) of the B.S.F. Act. The petitioner, however, pleaded not guilty on arraignment. The Court recorded the evidence after following the procedure of plea of “not guilty” under Rule 145 of the BSF Rules and found the petitioner guilty of the charge and sentenced the petitioner to be reverted to the rank of Constable.
4. A statutory petition by way of appeal, addressed to the Director General, BSF, by the petitioner to assail the correctness of his sentence of reversion to the rank of Constable, was examined in detail and considering all facts and circumstances of the case, the appeal was rejected being devoid of merit. It is further stated that the petitioner remained present throughout recording the evidence and full opportunity was given to him to cross-examine the witnesses in compliance to the provisions of Rule 48 of the B.S.F. Rules. An ample opportunity was given to the petitioner to produce the witnesses in his defence. The petitioner was, however, informed during the trial at Summary Court that he may take the assistance of any person including the legal practitioner vide order dated 09/11/2001 and the petitioner had given the name of Sh. S.P.S. Malik, Dy. Commandant of STC BSF, to act as friend of the accused during the trial. The officer remained present and attended the Summary Court trial. Further submission of the respondents is that neither BSF Act nor Rules provide service of the show-cause notice to a BSF personnel tried and sentenced by the Summary Court. The punishment awarded commensurates with the gravity of the offence, and the averments made in the petition do not disclose any procedural irregularity or illegality in the trial by the Summary Court that warrants judicial review.
5. Mr. Sandeep Singh, Addl.CGSC appearing for respondents, has produced the record of the proceedings of the Summary Court containing 89 leaves. Chapter VII of the BSF Rules, 1969, deals with Investigation and Summary Disposal. When an enrolled person in the BSF has committed an offence punishable thereunder, the allegations are required to be reduced to writing under Rule 43 of the BSF Rules. Record of Evidence was ordered in this case, which has been made in the presence and hearing of the accused, as contemplated under Sub-rule (3) of Rule 48 of the BSF Rules, by Sh. Kuldeep Singh, Assistant Commandant, STC, BSF. The statements of the witnesses also bear the signatures of the accused at their foot after these were read over to the witnesses in the presence of the accused. The accused was given full opportunity to cross-examine the witnesses, but he refused to do so as is found from the text of the statements of the witnesses produced and recorded in the case by the Recording Officer. The manuscript copy of the R.O.E. and the statement made by the accused thereafter under Sub-rule (3) of Rule 48 are contained in leaves from 33 to 83 of the record of Summary Court. Charge-sheet against the accused was prepared on 09/11/2001.
The charge-sheet was read over and explained to the accused and signed by the Court and attached to the proceedings. In the arraignment of the accused, a question was put to Navdeep Singh, accused/petitioner, are you guilty or not guilty of the charge?, which you have heard & read, to which he answered ‘not guilty’. Rule 145 prescribes detailed procedure after recording the plea of ‘not guilty’. It contemplates that the recording of the evidence of the prosecution will be taken and on the conclusion of such evidence, the accused shall be asked if he has to say anything in his defence. This, however, may be deferred until he has called his witnesses. The accused then shall call his witnesses and examine in the case. After the closure of the defence, the Summary Court gave its opinion, on the basis of evidence, that the accused is found guilty of the charge. It is further gathorable from the record produced by the respondents that the Summary Court before awarding the sentence, recorded of its own knowledge, read and explained the general character, age, service, rank and any recognized acts of gallantry or distinguished conduct of the accused and previous convictions of the petitioner either by the Security Force Court or a Criminal Court, any previous punishment awarded to him by an Officer exercising authority under Section 53, the period of his arrest or confinement in any previous sentence, and any decoration, or reward, or to which he may be in possession or to which he may be entitled, under Rule 151 of the BSF Rules. The Summary Court thereafter pronounced and awarded the sentence to the petitioner, Navdeep Singh of STC, BSF, and reduced him to the rank of Constable on 13/11/2001. The proceedings of the Summary Court are contained in the record from pages No. 1 to 32.
6. As noticed above and discernible from the record produced by the respondents, investigation prior to the charge and Summary Court after framing of the charge, is strictly in compliance to the express provisions of Rules 43, 48, 145 to 153 of the BSF Rules, 1969. Full opportunity was given to the petitioner to cross-examine the witnesses recorded before the framing of the charge and even the charge, framed against him, was read over and explained to him, as required under the Rules. Even during the proceedings including recording of the evidence, an opportunity of cross-examining the witnesses was given to the petitioner and a friend of the accused of his choice was also appointed to provide assistance to him in terms of Rule 157 of the BSF Rules. The minutes of the complete profile of the petitioner given by the Summary Court before sentence, evidently, disclose that the petitioner has been in open arrest for 10 days, besides he has been punished under Sections 19(b) and 32(b) of the BSF Act in 1985 and 1991 respectively. No infirmity or illegality has been found in the trial proceedings of the Summary Court conducted by the BSF in respect of the allegations contained in the charge-sheet of using criminal force to his superior officer.
7. The petitioner also preferred an appeal/statutory petition before the Director General, BSF, against his sentence, but the same was rejected being devoid of any merit, vide order dated 28/01/2003, after the Appellate Authority found that there is sufficient evidence on record to sustain the findings of the Court. It-was also found that use of criminal force to a superior officer is an offence of serious nature, and to maintain healthy tradition and discipline in the armed forces, adequate sentence to commensurate with the nature of the offence, is necessary to us.
8. In the fact and circumstances of the case, I do not find any justifiable cause made out by the petitioner to invoke the writ jurisdiction of the Court, seeking setting aside of the sentence awarded by the respondents in the order impugned, under Article 226 of the Constitution of India.
9. In the result, there is no merit in this petition and is, accordingly, dismissed at admission stage. The record shall be returned to the respondents by the Registry against proper receipt.
