{"id":149883,"date":"1998-09-24T00:00:00","date_gmt":"1998-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohinder-singh-ex-constable-vs-union-of-india-ors-on-24-september-1998"},"modified":"2016-05-16T18:06:49","modified_gmt":"2016-05-16T12:36:49","slug":"mohinder-singh-ex-constable-vs-union-of-india-ors-on-24-september-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohinder-singh-ex-constable-vs-union-of-india-ors-on-24-september-1998","title":{"rendered":"Mohinder Singh (Ex. Constable) vs Union Of India & Ors. on 24 September, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Mohinder Singh (Ex. Constable) vs Union Of India & Ors. on 24 September, 1998<\/div>\n
Author: K Ramamoorthy<\/div>\n
Bench: K Ramamoorthy<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 K. Ramamoorthy, J.  <\/p>\n
 1.     The petitioner has challenged his removal from service on the basis of the  decision  taken by the Summary Security Force Court under  the  Border Security Force Act, 1968.\n<\/p>\n
 2.   The  case of the petitioner briefly stated is in the following  terms. The  petitioner  was enrolled in Border Security Force (in  short  BSF)  in April 1988. In march 1989, he was posted in ‘B’ Coy of 92 Battalion BSF. In October  1993, the said ‘B’ Coy under the charge of Company Commander  Shri Shiv  Kumar  Garg,  Assistant Commandant. The Company was  required  to  do election  duty.  Other Companies were detailed for similar duties  and  all those Companies together formed part of BS-1 Battalion under the charge  of Shri U.K. Chakraborty, who was the senior most officer in the Company.  The said  Shri U.K. Chakraborty who was not competent to impose any  punishment as the disciplinary powers could be exercised by only the Commandant of the Company,  unjustifiably imposed punishment of 14 days  rigorous  imprisonment. The said officer was told that the petitioner could make a  complaint against  the  superior officer and that was the genesis  of  the  petitioner being roped in in a case of assault of one L.G. Singh. It was alleged  that along  with Constable Dinesh Saklani caused hurt on the person of that  L.G Singh.  The  occurrence  is stated to have taken place  at  1830  hours  on 25.11.1993.  The petitioner came to know about it on 14.12.1993.  No  staff court of inquiry was held. No copy of the staff court of inquiry was  given to  the  petitioner. No hearing was given to the  petitioner,  as  required under  Rule 45 of the BSF Rules. On 06.02.1994, charges were  framed  under Section  20(a) of the BSF Act, 1968 against the petitioner and four  others after recording the evidence.\n<\/p>\n
 3.   The  case of the petitioner is that what is alleged to have been  committed by him is a civil offence within the meaning of Section 2(1)(d) of  the
\nB.S.F  Act,  1968 and the provision of Section 74 of the Act had  not  been
\nfollowed. Rule 158 in this behalf had not been complied with. The petitioner has also alleged that the provisions of Section 70 of the BSF Act,  1968
\nhave  not been followed. It is the further case of the petitioner  that  in providing friend of the accused the mandate of Rule 154 of the Act had been ignored.\n<\/p>\n
 4.   On  the  merits  the petitioner has stated that on a  perusal  of  the evidence  on  record  it could be seen that no offence had  been  made  out against the petitioner. The petitioner has also stated that the  provisions of Evidence Act, 1872 had not been followed.\n<\/p>\n
 5.   In the counter affidavit respondents had accepted that they have acted in  accordance  with the provision of the Army Act and the  Rules  and  the petitioner cannot have any grievance. The first point relating to complying with  Rule  45  of the BSF Rules can be considered. If on  this  point  the finding goes against the respondents no other point would arise for consideration.  As pointed out by the Supreme Court in Lt. Col Prithi  Pal  Singh Bedi  Vs. Union of India and ors , if the Rule relating  to the hearing is not followed, the whole proceedings become void. As a matter of  fact,  the Army orders also would categorically lay down  that  if  the rules  are not followed the proceedings would be vitiated. Rule 45  of  the B.S.F. Rules reads as under:\n<\/p>\n
      Rule 45  <\/p>\n
      Hearing of the charge against an enrolled persons:\n<\/p><\/blockquote>\n
      1) The charge shall be heard by the Commandant of the accused.\n<\/p><\/blockquote>\n
      a)  The charge and statements of witnesses is recorded  shall  be read over to the accused. If written statements of witnesses  are not available, he shall hear as many witnesses as he may consider essential to enable him to determine the issue;\n<\/p><\/blockquote>\n
      b) The accused shall be given an opportunity to cross-examine the witnesses and make a statement in his defense.\n<\/p><\/blockquote>\n
      2)  After hearing the charge under sub-rule (1),  the  commandant may:-\n<\/p><\/blockquote>\n
      i) award any of the punishment which he is empowered to award; or   <\/p>\n<\/blockquote>\n
      ii) dismiss the charge, or  <\/p>\n<\/blockquote>\n
      iii)  remand the accused, for preparing a record of  evidence  or for preparation of an abstract of evidence against him; or   <\/p>\n<\/blockquote>\n
      iv) remand him for trial by a summary security force court;\n<\/p><\/blockquote>\n
      Provided  that, in cases where the commandant award more  than  7 days  imprisonment or detention he shall record the substance  of evidence and the defense of the accused;\n<\/p><\/blockquote>\n
      Provided  further  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;\n<\/p><\/blockquote>\n
      Provided also that, in case of all offence punishable with  death a record of evidence shall be taken.\n<\/p><\/blockquote>\n
 6.   In  para 8 of the petition, the petitioner has asserted that  Rule  45 had not been complied with. In reply to this, the respondents had stated in the counter.\n<\/p>\n
       “The  contents  of para 8 are denied being  false  and  baseless. However,  it is submitted that all the accused persons  including the  petitioners were given hearing under Rule 45 by the  Commandant  on the offence report on 14.12.1993. All the accused,  per sons  had  pleaded `no guilty’ to the charge.  Then  Comdt  heard relevant  witnesses and on being prima facie  satisfied,  ordered for  Record of Evidence with a view to investigate the matter  in detail as per Rule 48. Then after ROE, Comdt perused the same and finding  sufficient  evidence against the accused  person,  tries them  by  SSFC as he is empowered to do so under Rule 51  of  BSF Rules  1969. The copy of the hearing under Rule 45 is annexed  as Annexure R-1.”\n<\/p>\n
 7.   No annexure R-I is filed alongwith the counter affidavit. Nothing  was produced  at the time of hearing. The respondents must have  complied  with Rule 45 before the charges were framed. When Rule 45 has not been  followed by the respondents all other proceedings taken by the respondents would  be null  and  void.  There is absolutely nothing on record to  show  that  the respondents had complied with Rule 45 of the BSF Rules.\n<\/p>\n
 8.   On 06.02.1994, after the record of evidence, a charge was framed under Section 29(a) of the Border Security Force Act, 1968 against the petitioner and  the four others. According to the learned counsel for the  petitioner, the  case of the petitioner would come within the meaning of Civil  offence under  Section  2(d) of the Border Security Force Act,  1968  which  states civil offence means an offence which is triable by a criminal court. If the offence  comes within the ambit of civil offence, according to the  learned counsel  for the petitioner, the procedure under Section 46 of  the  Border Security Force Act, 1968 provides for the procedure which is as under:\n<\/p>\n
      Section 46:\n<\/p>\n
      Subject  to the provisions of Section 47, any person  subject  to this Act who at any place in, or beyond, India commits any  civil offence  shall be deemed to be guilty of an offence against  this Act and, if charged therewith under this section shall be  liable to  be  tried by a Security Force Court and,  on  conviction,  be punishable as follows:\n<\/p>\n
 9.   This is again subject to provisions of Section 74 of the Border  Secu-\n<\/p>\n
rity Force Act, 1968 and the procedure under Section 74 is provided in Rule
\n158  of  the Border Security Force Rules, 1969. According  to  the  learned counsel  for the petitioner the procedure provided had not  been  followed. Rule 158 reads as under:\n<\/p>\n
      Rule 158:\n<\/p>\n
      Memorandum to be attached to proceedings: where a Summary Security  Force  Court tries an offence which shall not  ordinarily  be tried without reference to an authority mentioned in sub  section 92) of Section 74, an explanatory memorandum shall be attached to the proceedings.\n<\/p>\n
 10.  According  to the learned counsel for the petitioner, no reference  as contemplated  of  Section  74 of the Act, 1968 has been made  to  the  DIG, Calcutta before conducting the trial by a Summary Security Force Court  and no explanatory memorandum was attached to the trial proceedings  justifying the urgency in conducting the trial without following the procedures  under Section 74 of the Border Security Force Act, 1968.\n<\/p>\n
 11.  The  learned counsel for the petitioner referred to Section 70 of  the Border Security Force Act, 1968. Section 70 of the BSF Act reads as under:\n<\/p>\n
      Section 70  <\/p>\n
      70(1)  A Summary Security Force Court may be held by the  Commandant  of any unit of the Force and he alone shall constitute  the Court.\n<\/p><\/blockquote>\n
      The proceeding shall be attended throughout by two other  persons who  shall be officers or subordinate officers or one  of  either and who shall not as such, be sworn or affirmed.\n<\/p><\/blockquote>\n
 12.  As  per the provisions, the proceedings can be attended by  two  other persons who shall be officers or subordinate officers or one of either  who shall not be scorned or affirmed. In the instant case the proceedings  were attended by two subordinate officers, namely, Subedar Balbir Singh and  Sub Inspector B.P. Balodi who was examined as PW-4 in the case.\n<\/p>\n
 13.  According to the learned counsel for the petitioner Mr. Bishram  Singh this is a serious violation of the procedure prescribed. The learned  counsel  next  relied upon Rule 157 of the Border Security  Force  Rules,  1969 which provides for assistance to the Accused. Rule 157 reads as under:\n<\/p>\n
      Rule 157:\n<\/p><\/blockquote>\n
      During  a trial at a Summary Security Force Court an accused  may take the assistance o any person, including a legal  practitioner as he may consider necessary.\n<\/p><\/blockquote>\n
      Provided  that  such person shall not  examine  or  cross-examine witnesses or address the court.\n<\/p><\/blockquote>\n
 14.  The  petitioner  wanted  to have the the assistance of  one  Shri  Man Singh, Deputy Commandant as friend of the accused that was not provided  by the  respondents. The petitioner exercised his choice of friend  and  asked for assistance of one Shri Ran Singh Inspector. His services were also  not provided to the petitioner. The respondents had complied with the rules  of 57 thrust upon the petitioner the services of one SI Bhomick who had  absolutely  no knowledge of the Border Security Force law or the civil law  and he was only watching the proceedings and he was not rendered any assistance to  the petitioner. The learned counsel for the petitioner  submitted  that the respondents had made a mockery of Rule 157.\n<\/p>\n
 15.  Referring  to the arraignment he referred to Rule 138 of  the  Border Security Force Rules, 1969, which reads as under:\n<\/p>\n
      1)  After the court and interrupter (if any) are sworn or  affirmed as  above mentioned, the accused shall arraigned on  the  charges against him.\n<\/p>\n
      2)  The charges on which the accused is arraigned shall  be  read and, if necessary, translated to him, and explained and he  shall be required to plead separately to each charge.\n<\/p>\n
 16.  According to the learned counsel for the petitioner Mr. Bishram  Singh the  accused all of them were not jointly asked whether they were  pleading guilty  or not. According to the learned counsel this is contrary  to  Rule 130. Regarding the evidence given by the witnesses, it is stated in para 22 of the petition which is as under:\n<\/p>\n
       That  in the present case, ten PWs and four DWs were examined  in addition  to be recording of the statements of all the  five  accused  persons  including  the petitioner. Out of  the  said  ten prosecution witnesses, only PW1, HC.L.G Singh (Complainant)  made criminating  statement to the effect that no sooner  the  roll call  was  over,  constable Mohinder Singh  (Petitioner)  gave  a severe  punch  on his chest and constable S.K.  Tyagi,  constable Dinesh  Saklani,  constable N.s. Dalal started beating  him  with belts and sticks (wicket of Cricket Game). P.W.1 then shouted for help but accused constable Vijay Bahadur said “Maro Maro Sale  Ko Maar Dalo”. This PW1 specified the time of assembly of roll calls 1830  hours, and its disposal at 1840 hours and the time  of  alleged  incident at 1845 hours. However, no prosecution  witnesses i.e. PW5 to 9 who were juniors, guard commander etc. whose reference  PW1 made in his deposition supported the said  incident  of beating. According to them no such incident occurred. The PW1  to 4  and all the five accused persons have also denied  the  occurrence of the incident.\n<\/p>\n
 17.  According  to the learned counsel for the petitioner prosecution  witnesses 2, 3, 4 and 10 were supervisory staff and they were formal witnesses and  they  did not speak anything about the occurrence. Mr.  Bishram  Singh submitted that the medical reports have been admitted the evidence  without examining the Doctor.\n<\/p>\n
 18.  The  trial court had cross-examined the prosecution witnesses  PW5  to PW9  adopting the curious procedure of re-examining them without  declaring them  hostile.  In the re-examination new facts have  been  introduced  and questions were not related to clarification of points arising out of cross-examination, and some of the witnesses who were not cross-examined had been
\nre-examined.\n<\/p>\n
 19.  Bishram  Singh, the learned counsel for the petitioner submitted  that wearing  apparels of PW1 were admitted in the evidence on the premise  that it was stained with human blood without examination of Serologist.\n<\/p>\n
 20.  Though  Mr.  Bishram  Singh, the learned counsel  for  the  petitioner earlier submitted that prosecution witnesses 2, 3, 4 and 10 were supervisory  staff and formal witnesses. The learned counsel submitted a reading  of the  evidence would show that no case has been made out by  the  petitioner and this is a case of no evidence. The learned counsel referred to  Section 48  of  the Border Security Force Act, 1968 about  the  proportionality  of punishment. Section 48 of the BSF Act, 1968 reads as under:\n<\/p>\n
      Section 48:\n<\/p><\/blockquote>\n
      1)  Punishment may be inflicted in respect of offences  committed by  persons subject to this Act and convicted by  Security  Force Courts according to the scale following that is to say:\n<\/p><\/blockquote>\n
      a)   death:\n<\/p><\/blockquote>\n
      b)   imprisonment which may be for the term of life or any  other lesser  term but excluding imprisonment for a term  not  exceeding three months in the Force Custody  <\/p>\n<\/blockquote>\n
      c)   dismissal from the service;\n<\/p><\/blockquote>\n
      d)   imprisonment for a term not exceeding three months in  force custody;\n<\/p><\/blockquote>\n
      e)   reduction to the ranks or to a lower rank or grade or  place in the list of their rank in the case of an under-officer;\n<\/p><\/blockquote>\n
      f)   forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;\n<\/p><\/blockquote>\n
      g)   forfeiture of service for the purpose of increased pay, pension or any other prescribed purposes;\n<\/p><\/blockquote>\n
      h)   fine, in respect of civil offences;\n<\/p><\/blockquote>\n
      i)   severe reprimand or reprimand except in the case of  persons below the rank of an under-officer;\n<\/p><\/blockquote>\n
      j)   forfeiture of pay and allowances for a period not  exceeding three months for an offence committed on active duty;\n<\/p><\/blockquote>\n
      k)   forfeiture in the case of person sentenced to dismissal from the  service of all arrears of pay and allowances and  other public money due to him at the time of such dismissal;\n<\/p><\/blockquote>\n
      l)   stoppage  of  pay and allowances until any  proved  loss  or damage  occasioned by the offence for which he is  convicted is made good.\n<\/p><\/blockquote>\n
      Each  of  the punishments specified in sub-section (1)  shall  be deemed to be inferior in degree to every punishment preceding  it in the above scale.\n<\/p><\/blockquote>\n
 21.  The learned counsel also submitted that there is no record of  special finding as recorded under Rule 149(3)(4) of the Border Security Force  Act, 1968. Rules 149(3)(4) are as under:\n<\/p>\n
     RULE 149(3)(4)  <\/p>\n<\/blockquote>\n
      1) . . . . .\n<\/p><\/blockquote>\n
      2) . . . . .\n<\/p><\/blockquote>\n
      3)  When the court is of opinion as regards any charge  that  the facts  found to be proved in evidence differ materially from  the facts alleged in the statement of particulars in the charge,  but are  nevertheless sufficient to prove the offence stated  in  the charge  and  that the difference is not so material  as  to  have prejudiced  the  accused  in his defense, it may,  instead  of  a finding of “Not Guilty” record a special finding.\n<\/p><\/blockquote>\n
      4)  The special finding may find the accused guilty on  a  charge subject  to the statement of exceptions or  variations  specified therein.\n<\/p><\/blockquote>\n
 22.  The  learned  counsel for the petitioner referred to Rule 166  of  the Border Security Force Rules, 1969. Rule 166 reads as under:\n<\/p>\n
      BSF RULE 166 Sentence of Dismissal –\n<\/p><\/blockquote>\n
      1)  Sentence  of  dismissal shall take effect from  the  date  of promulgation of such sentence or from any subsequent date as  may be specified at the time of promulgation.\n<\/p><\/blockquote>\n
      2)  A  sentence  of dismissal combined with  imprisonment  to  be undergone  in  a civil prison shall not take  effect  until  such person has been committed to a civil prison,  <\/p>\n
      According to the learned counsel this was not complied with.\n<\/p><\/blockquote>\n
 23.  In  the counter affidavit, it is stated that the petitioner was  given sufficient  opportunity.  His statutory complaint was also  considered  and rejected. Without referring to the evidence and the material placed  before the court, it is stated in paras 5 and 6 of the counter:\n<\/p>\n
      In  reply to para 5, it is stated that on 14.12.1993,  the  petitioner alongwith other o4 co-accused was heard by his Commandant’ on offence report under Rule 45 of BSF Rules 1969. The Commandant after all hearing the accused persons relevant witnesses  ordered for  preparation  of ROE. Thereafter,  the  petitioner  alongwith other  co-accused  was  jointly tried by  SSFC  from  11.3.94  to 26.3.94 on the charge punishable U\/S 20(a) of BSF Act. The  peti-\n<\/p><\/blockquote>\n
     tioner  was awarded sentence of dismissal as the gravity  of  offence against him was more serious as he played leading.\n<\/p><\/blockquote>\n
      The  contents of the para are denied. In reply to para 6,  it  is submitted  that after the occurrence of the incident on  25  Nov. 1993, the matter was immediately reported first to Subedar Rattan Chand (PW-3 to the SSFC) at about 1845 hrs on the same day who in turn  reported  to the Comdt. Shri  Chakraborty  Then  Commandant immediately  deputed Shri S.K. Gard, Asstt. Comdt. (PW-2  to  the SSFC)  to evacuate the victim (HC L G Singh) to the hospital.  On the way to hospital the officer investigated the matter as to who had beaten him. Thereupon, it was informed to him that the victim had  been  beaten by the petitioner  alongwith  other  co-accused ersons. As such, the evidence came forth during the SSFC  trial, implicitly proves the quality of the petitioner. As the petitioner had  played a leading role in causing serious injuries to HC L  G Singh, therefore, he was awarded severe punishment in  comparison of other co-accused. Had he not played the leading role,  perhaps the incident could not had occurred.\n<\/p><\/blockquote>\n
 24.  According to the respondents in the counter Rule 45 had been  complied with.  In  para 8, it is asserted with reference to the the  compliance  of Rule 45.\n<\/p>\n
      The  contents of para 8 are denied false and baseless. However, it  is submitted that all the accused persons including the petitioners were given hearing  under  Rule  45  by  the  Commandant  on  the  offence  report  on 14.12.1993. All the accused persons had pleaded ‘not guilty’ to the charge. Then  Comdt. heard relevant witnesses and on being prima  facie  satisfied, ordered  for  Record of Evidence with a view to investigate the  matter  in detail  as per Rule 48. Then after ROE, Comdt perused the same and  finding sufficient evidence against the accused person, tried them by SSFC as he is empowered  to  do so under Rule 51 of BSF Rules 1969. The copy  of  hearing under Rule 45 is annexed as Annexure R.1.\n<\/p>\n
 25.  The  document R-1 had not been filed is stated to have  been  annexed. The respondents have not taken any care to place all the facts before  this court and the counter affidavit is very vague.\n<\/p>\n
 26.  To the points taken by the petitioner relating to the compliance  with the  procedure  prescribed under the statutory provision,  the  respondents have not been able to give any answer though stating merely that the  court had  imposed  punishment after enquiring the petitioner cannot be  held  to contend  that  there  had been pre trial violation of  the  procedure  prescribed.  There is no material from the respondents to prove that  Rule  45 had  been complied with. There is no evidence to prove that Section 74  had been  followed. The counter sign by DIG on 11.11.1996 as contended  for  on behalf  of the respondents is not compliance with Section 74. The  respondents have not explained as to how the the medical report could be  admitted without examination of the Doctor. The respondents have also not  explained as to how the wearing apparels of PW1 could be admitted in evidence without the  opinion of an expert. The learned counsel for the petitioner  Mr.  Bishram  Singh relied upon the judgment of the Supreme Court reported in  Lt. Col.  Prithipal Singh Vs. Union of India  wherein  the  Supreme  Court  had dealt with the scope of Rule 22 of the  Army  Rules.  The learned counsel for the petitioner submitted that in Major Harpar Singh Vs. Union  of India & Others 1996(37) DRJ Delhi 390. This Court had  considered the entire case law on the all points.\n<\/p>\n
 27.  The learned counsel for the petitioner submitted that the  respondents should show that the rules had been complied with by placing the  necessary materials  before this Court and that has not been done in this  case.  According to the learned counsel the respondents had ignored the dictum  laid down  by the Supreme Court in Prithi Pal Singh case. There is  considerable force  in  the  submissions made by Mr. Bishram Singh.  I  have  also  gone through  the  evidence when the respondents have not  followed  the  rules. Whatever  happened  subsequent  to the preliminary enquiry  and  the  trial proceedings  would  be wholly void. I have no hesitation in coming  to  the conclusion that the entire proceedings taken by the respondents was vitiated  and the sentence imposed by the Summary Court Force is absolutely  void and it cannot be sustained.\n<\/p>\n
 28.  Accordingly, the writ petition is allowed. The proceedings of  summary Security Force Court stands quashed and the petitioner shall be entitled to be  reinstated with all consequential benefits. The respondents shall  pass appropriate  orders reinstating the petitioner with consequential  benefits on or before 30.11.1998. There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Mohinder Singh (Ex. Constable) vs Union Of India & Ors. on 24 September, 1998 Author: K Ramamoorthy Bench: K Ramamoorthy ORDER K. Ramamoorthy, J. 1. The petitioner has challenged his removal from service on the basis of the decision taken by the Summary Security Force Court under the Border Security Force Act, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-149883","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMohinder Singh (Ex. 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