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2000 DIGILAW 249 (DEL)

ASHOK KUMAR (EX. CONSTABLE) v. UNION OF INDIA

2000-03-01

C.M.NAYAR, R.S.SODHI

body2000
R. S. SODHU. ( 1 ) THE petitioner, Ashok Kumar, an Ex. Constable, Border Security Force, by thispetition under Article 226 of the Constitution of India, seeks to challenge the findingsand sentence awarded by the General Security Force Court vide order dated 1 8/04/1994, which were confirmed by the statutory authority as also the Centralgovernment rejected the statutory petition of the petitioner against the findings andsentence of the said General Security Force Court vide order dated 29/07/1995. ( 2 ) IT is the case of the petitioner that he was enrolled in the Border Security Forceas a Constable on 12/04/1989 and after completion of training was posted in142 Battalion BSF. During June, 1992 the petitioner was posted in F-Company,headquarter, located a Border Out Post, Nayatal, Barmer Sector, Rajasthan, withinthe jurisdiction of Commandant 412 Battalion, BSF. That on 6/06/1992 thepetitioner was nominated by Head Constable Santokh Singh to work as Personalorderly to Subedar Nathu Ram, Officiating Company Commander of the said f company at the said Border Out Post. Nayatal which job, according to the petitioner,was of a menial nature, such as polishing shoes, bringing food from cook house,washing utensils etc. and, therefore, the petitioner declined to perform the said duties as it was a job beyond the call of duty. This, it is stated, was a cause of annoyancewhich brought about his being victimised. On 13/06/1992 the petitioner wasdirected to do pack drill for allegedly not being attentive while on duty at observationpost, Naka, where a water tanker approached the said Border Out Post, Nayatal,and went undetected. The said punishment was supervised by Naik Mukhtiyar Singh. It is the case of the petitioner in the writ petition that while doing pack drill, thepetitioner saw Head Constable Santokh Singh carrying one rifle and one bandoliarand going towards the office-cum-residence of the said Company Commander,nathu Ram. After the pack drill, the petitioner found his rifle and ammunition missing. ( 3 ) IN order to retrieve his rifle and ammunition, the petitioner went to the office-cum-residence of the Company Commander and made missing report of his rifle andammunition from the barrack. After the pack drill, the petitioner found his rifle and ammunition missing. ( 3 ) IN order to retrieve his rifle and ammunition, the petitioner went to the office-cum-residence of the Company Commander and made missing report of his rifle andammunition from the barrack. The Company Commander, Nathu Ram, pointed towards a rifle which was kept near the window which, the petitioner confirms, wasthe one issued to him and the petitioner in the attempt to take back his rifle grappledwith the Company Commander who was holding the rifle from its butt while the muzzlewas pointing towards the petitioner. During the struggle one round got fired which hitthe petitioner in his stomach and he fell down on the ground and remained in senses. The Company Commander, according to the petitioner, sensing the gravity of thesituation committed suicide by firing a shot from the same rifle at his forehead. Thepetitioner was evaluated to Civil Hospital, Barmer at about 1945 hours on the sameday i. e. 13/06/1992 and the next day was moved to M. G. Hospital, Jodhpur. Hewas tried in April, 1994 by a General Security Force Court on allegedly false andfabricated charges, convicted and sentences to suffer imprisonment for life anddismissed from service vide order dated 18/04/1994. He assails the proceedingson various counts, primarily, on the ground of appreciation of evidence and non-compliance of Rule 45 of the Border Security Force Rules (for short the Rules ). ( 4 ) THE case put up against the petitioner by the prosecuting agency is that the f company of the Unit was deployed at the Border Out Post, Nayatal since 14/05/1992 and was having two out posts of platoon level each at Badha, Ekal and aplatoon plus Company Headquarter at Nayatal. Inspector Ram Kumar, the thenofficiating Company Commander was relieved by inspector Nathu Ram as heproceeded on sixty days earned leave on 8/06/1992. ( 5 ) THAT on 13/06/1992, Constable Ashok Kumar, petitioner herein, wasdetailed for observation post duty from 0700 hours to 0900 hours. At about 0830hours a water tanker from Janpalia came into the post tor water supply. Constableashok Kumar who was on out post duty alarmed the post at the time when the watertanker was justentering into the border out post, Nayatal. At about 0830hours a water tanker from Janpalia came into the post tor water supply. Constableashok Kumar who was on out post duty alarmed the post at the time when the watertanker was justentering into the border out post, Nayatal. The drill for alerting the postis that the out poston duty whenever sports and vehicle coming towards the post froma distance must sound the alert whereby alerting the border out post which would giveenough time even when the intruder is about a kilometer away. But in this case, thepetitioner was not vigilant enough while performing his duty. ( 6 ) THAT at 0910 hours the Guard Commander, Naik Mukhtiyar Singh, brought thepetitioner before the Officiating Company Commander, Inspector Nathu Ram, whothen sought an explanation as to why the tanker was allowed to get away without therequisite alert being sounded. The explanation not being satisfactory, Constableashok Kumar was given pack drill from 1000 hours to 1030 hours under thesupervision of the Guard Commandar. ( 7 ) THAT at about 1140 hours on the same day i. e. 13/06/1992 a sound of riflefire followed by another was heard from the office-cum-residence of the Companycommander. All the personnel available at the border out post rushed towards thepost arid found that the petitioner was standing outside with hands raised, shouting"inspector KO MAR DALA. MENE JO KARNA THA KAR DIYA. MAIN BHIMARUNGA. APNE KO BHI GOLI MARI HAI (have killed the Inspector. I have donewhat I wanted to do. I will also die. I have also shot myself ). Upon this he threw awaythe rifle on the platform in front of the building. Some personnel including Headconstable Birender Singh rushed in the room and saw Inspector Nathu Ram s deadbody lying on the ground in a pool of blood. The petitioner too was found bleeding onthe left side of the stomach. He was taken to the barrack and given first aid andthereafter evacuated to Civil Hospital Chhotan/barmer and further to Jodhpur. Theincident was initially reported to Police Station Bakasar on the same day and FIRNo. 16 dated 13/06/1992 under Sections 302/309 Indian Penal Code was recorded. The case,however, was got transferred to Border Security Force and thereafter Constableashok Kumar was tried by General Security Force Court who after trial, found himguilty and sentenced him on 18/04/1994 to suffer imprisonment for life anddismissed from service. The case,however, was got transferred to Border Security Force and thereafter Constableashok Kumar was tried by General Security Force Court who after trial, found himguilty and sentenced him on 18/04/1994 to suffer imprisonment for life anddismissed from service. ( 8 ) WE have heard learned counsel for the petitioner at length. He has taken usthrough the record of the case and has pleaded that we reappraise the evidencewhich, according to him, would show that the petitioner was innocent, he emphasisesthat parameters of judicial review under Article 226 of the Constitution do not inhabitthe court from doing complete justice which would then mean that the entire evidencecan be gone into as if the Court were one of First Appeal. In any event, according tothe learned counsel, Rule 45 of the Border Security Force Rules having not beencomplied with, the trial would be vitiated and the petitioner entitled to an acquittal. Onthe other hand, it is argued by learned counsel for the respondents, that the Highcourt under Article 226 of the Constitution is not a Court of Appeal but can certaintygo into the matter of procedural irregularities and/or matters relating to violation ofnatural justice as also the Rules but contends that in the present case there has been ( 9 ) WE have given our careful consideration to the contentions of learned counselfor the parties; satisfied ourselves and gone through the record of the case. We mayat the outset state that the judicial review envisaged under Article 226 of the Constitutionin respect of the proceedings, in which the defence personnel serving in the Army,navy, Air Force or even para-military force when commit any offence, are dealt withby a special provision contained in statutory enactments governing them and not bynormal criminal procedure code is not in the nature of an appeltate court. Thesepersonnel are to be dealt with under such enactments which are completed codes inthemselves and prescribe the procedure to be followed in cases governed by it. Personnels that are tried by such procedure are provided with sufficient safeguardsby way of further appeal to the Heads of the organisations and then ultimately to theunion Government. Therefore, ordinarily there should be a finality to the proceedingsas envisaged by these enactments, in this case the Border Security Force Act andthe Border Security Force Rules. Personnels that are tried by such procedure are provided with sufficient safeguardsby way of further appeal to the Heads of the organisations and then ultimately to theunion Government. Therefore, ordinarily there should be a finality to the proceedingsas envisaged by these enactments, in this case the Border Security Force Act andthe Border Security Force Rules. The High Court s powers under Article 226 of theconstitution to judicially review such findings is for a limited purpose, namely, forfinding out whether there has been infraction of any mandatory provisions of the Actprescribed and procedure which has caused gross miscarriage or for finding outwhether there has been violation of principles of natural justice which vitiated theentire proceedings or that the authority exercising the jurisdiction has not beenvested with the jurisdiction under the Act. The power of judicial review cannot be thatof an appellate authority permitting to re-appreciate the evidence and come to aconclusion that the evidence is sufficient for the conclusion arrived at by the competentauthority under the Act. The Supreme Court has held in a number of judgment that atthe highest the jurisdiction of the High Court of judicial review of the findings of theseauthorities cannot be higher than those exercised by the High Court under Article 227of the Constitution against an order of an inferior tribunal and, therefore, the Highcourt would not be justified in entering into the forbidden zone of re-appreciating theevidence as a Court of Appeal. A Division Bench of this. Court in Ex. Maj. R. S. Budhwar Vs. Union of India and Others, 58 (1995) DLT 339 had an occasion togo into the question of the nature of judicial review and has dwelt into all aspectsthereof. It has held :- "the jurisdiction of this Court under Article 226 is, therefore, defined and islimited to the extent of finding it whether there is an error of jurisdiction and itis a case of total lack of evidence. This Court, as has been consistently held,does not sit as a Court of Appeal. In case legal evidence was available onwhich a finding could be given, the sufficiency or otherwise was for theauthority to decide and this Court cannot substitute its opinion for that ofcourt-Martial. "further: "the Court on its own appraisal of the evidence may come to a contraryconclusion but it is not open to quash an order until and unless the impugnedorder was based on no evidence at all. "further: "the Court on its own appraisal of the evidence may come to a contraryconclusion but it is not open to quash an order until and unless the impugnedorder was based on no evidence at all. The sufficiency and insufficiency ofevidence is not a matter for this Court to consider in a petition under Article226 of the Constitution of India. The same is for the Authority to decide. Theerror or defect of procedure of which some Instance have been given bylearned Counsel appearing for the petitioner, cannot be entertained in thepresent proceedings as these may be mere procedural irregularities andthey cannot be regarded as errors of taw apparent on the face of the recordand no challenge was made at an appropriate stage and the principles ofnatural justice have not been violated. " ( 10 ) THE judgment has found favour with the Supreme Court in Major R. S. Budhwarvs. Union of India and Others (1996) 9 SCC 502 . ( 11 ) IN the backdrop of the settled legal position we may appreciate the contentionsraised by learned counset for the petitioner. It is the contention of the petitioner thatthere has been an infringement of Rule 45 of the Border Security Force Rulesinasmuch as the Commanding Officer purportedly held a hearing on 6/08/1992 and the minutes were signed by the Commanding Officer on 10/09/1992 to be treated as a certificate of compliance of the said Rule 45. In other words,the certificate appended to the proceedings under Rule 45 having been done at 10thseptember, 1992 shows that no proceedings had taken place on 6/08/1992and that it was a febrication of record. He has urged that without complying with Rule45, a procedure under Rule 48 could not have been resorted to and in absencethereof there was no basis to hold a General Security Force Court, therefore, the trialis vitiated. He submits that Rule 45 is mandatory in character and any infringementthereof would vitiate the trial. ( 12 ) A bare perusal of Rule 45 would indicate that by its very nature, the hearing ofevidence by the Commanding Officer at the initial stage when the person chargedwith an offence is brought before him is for the purpose of ascertaining whether thecharge should be dismissed or be proceeded with. If the Commanding Officer is ofthe opinion that the charge ought not to be proceeded with, the person charged withthe offence has to be released forthwith. If the Commanding Officer is ofthe opinion that the charge ought not to be proceeded with, the person charged withthe offence has to be released forthwith. On the other hand, if the Commandingofficer is of the opinion that the charge ought to be proceeded with, he may thenfollow the procedure prescribed for further proceedings. The object of the Rule, itappears, is to hold a sort of preliminary investigation by the Commanding Officer witha view to ascertain whether a prima facie case exists to justify further proceedingsand the nature of those proceedings, namely, he can either award any punishmentwhich he is empowered to or dismiss the charge or remand the accused for preparinga record of evidence or for preparation of an abstract of evidence against him orremand him for trial by Summary Security Force Court, but in cases where theoffence is punishable with death, a record of evidence shall be taken. In this case, the Commandant directed recording preparation of record of evidence by order dated 6/08/1992. Once therefore, having come to the conclusion that the chargeought to be proceeded with, the Commandant directed the formal recording ofstatement of witnesses, as provided to enable remand of the accused for trial bygeneral Security Force Court. It is thus implicit in the procedure prescribed that anyerror or irregularity at the stage before the case is charged for the purpose of havingthe evidence reduced to writing, will not vitiated the subsequent trial as the guilt of theaccused has to be established not on the basis of what the Commanding Officermight have done or might not have done at the initial stage. Any irregularity inprocedure at that initial stage might have a bearing on the voracity of witnessesexamined at the trial or on the bona fide ofthe Commanding Officer or on the defencethat may be set up by the accused at the trial, but the irregularity, by no means, berecorded as effecting the jurisdiction of the court to proceed with the trial. Therefore,even if it is assumed that there was non-compliance with the requirement of Rule 45,the non-observance of the Rule is not such as to vitiate the trial and ultimate convictionof the petitioner. Therefore,even if it is assumed that there was non-compliance with the requirement of Rule 45,the non-observance of the Rule is not such as to vitiate the trial and ultimate convictionof the petitioner. In the present case, there appears to be no infringement inasmuchas the proceedings were, in fact, held by the Commandant on 6/08/1992 onthe two charges punishable under Sections 302/309 Indian Penal Code under the provisions of theborder Security Force Rule 45 and the Commander, after giving hearing to thepetitioner on the offence report, ordered for preparation of record of evidence on 6/08/1992 which subsequently led to his trial by General Security Force Court. It ison record that the Commandant orally examined as many as eight witness and theaccused was given an opportunity to cross-examine them. Three witnesses werecross-examined while the accused declined to cross-examine others. Therefore, nofault could be found in the procedure adopted under Rule 45. The attack on the dateof certification of the compliance of Rule 45 being 10/09/1992 cannotpossible vitiate what was actually done on 6/08/1992 and, therefore, thegrievance of the petitioner of non-compliance of Rule 45 is mis-placed. ( 13 ) LEARNED counsel for the petitioner contended that this was a case of no evidence and, therefore, to satisfy ourselves, we proceeded to examine the record from thatangle and found that the contention is baseless. Witnesses have been examined andfrom their testimony it cannot be said that this is a case of no evidence . We choose,however, not to discuss the sufficiency or the evidentiary value which is not within ourpurview. ( 14 ) YET another grievance of the learned counsel is that the proceedings ofinvestigation by the civil authorities were not given to him and this infringement hasvitiated the trial of the case. It need hardly be said that the case put up by theprosecution and the material relied upon had been supplied in accordance with therequirements of the Rules under the Border Security Force Act. If any further materialwas required for the purpose of defence, it could always have been summonedduring trial. The petitioner chose not to exercise this option in the conduct of the trialand, therefore, cannot at this stage claim that breach has been caused because ofnon-supply of material which was not used in the trial against him by the prosecution. If any further materialwas required for the purpose of defence, it could always have been summonedduring trial. The petitioner chose not to exercise this option in the conduct of the trialand, therefore, cannot at this stage claim that breach has been caused because ofnon-supply of material which was not used in the trial against him by the prosecution. ( 15 ) IN this view of the matter, we are of the considered opinion that the grievancethe petitioner is baseless and, therefore, the writ petition deserves to be dismissed. Accordingly, the writ petition is dismissed and the Rule discharged. There shall be noorder as to costs.