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2007 DIGILAW 62 (JK)

Sukanta Mitra v. Union Of India

2007-05-03

HAKIM IMTIYAZ HUSSAIN, Y.P.NARGOTRA

body2007
1. This Letters Patent Appeal is directed against the order dated 17.3.2005 passed in SWP No.433/2004, whereby the writ petition of the appellant has been dismissed. 2. The appellant stood engaged as Cook in the BSF. He was tried for the offence under Section 21(2) of the Border Security Act on the following charges, which related to the three incidents. "Charge sheet The accused No. 891 100GBSF (Cook) Sukanta Mitra of 49 Bn. is charged with:- @Z_TBL_BEG = COLUMNS(2), DIMENSION(IN), ABOVE(.1000), BELOW(.1000), HGUTTER(.0555), VGUTTER(.0555), BOX(Z_SINGLE), VGRID(Z_SINGLE), KEEP(OFF) @Z_TBL_BODY = TABLE TEXT, TABLE TEXT First charge BSF Act Section 21(2), Disobeying a lawful command given by his superior officer , In that he,, at Dantiwada Gurarat) HQ 89 BN BSF,, on 26.05.2001 at about 2000 hrs while undergoing rigorous imprisonment in quarter guard and ordered by No.45003630 K D Kadam of his Unit to take dinner,, did not do so. Second charge BSF Act Sec21 (2), Disobeying a lawful command given by his superior officer. , In that he,, at Bantiwada (Gurarat) HQ 89 Bn BSF on 27.95.2001 at about 0730 hrs,, while undergoing rigorous imprisonment in quarter guard and ordered by No. 81733022 HC Mohd. , Gayasuddin of his Unit to take breakfast,, did not do so. Third charge BSF Act Sec 21 (2), Disobeying a lawful command given by his superior officer , In that he,, at Dantiwada (Gurarat),, HQ 89 Bn BSF,, on 27.05.2001 a about 1130 hrs,, while undergoing rigorous imprisonment in quarter guard an ordered by IRLA No. 19240707 by Mr. R. Thoiba Singh,, BMO of his unit to take lunch,, did not do so. Place: Srinagar Dated 15 Nov., Sd/- , (O. P. Tanwar) , Commandan , 89 BN BSF." @Z_TBL_END = 3. During the proceedings, the appellant is alleged to have pleaded guilty. By relying upon the plea of guilt of the appellant, the punishment of dismissal from service was imposed upon him by order dated 19th November 2001. 4. Being aggrieved of the order of dismissal the appellant preferred an appeal before the appellate authority. However, during the pendency of the appeal the appellant filed a writ petition 2214 (W) of 2002 before the High Court of Calcutta. The said writ petition of the appellant came to be disposed of with a direction to the respondents to consider the appeal and pass speaking and reasoned order. However, during the pendency of the appeal the appellant filed a writ petition 2214 (W) of 2002 before the High Court of Calcutta. The said writ petition of the appellant came to be disposed of with a direction to the respondents to consider the appeal and pass speaking and reasoned order. Pursuant to the said direction the appellate authority dismissed the appeal of the appellant by its reasoned order dated 7th June 2002. The appellant for assailing the order of the appellate authority again moved the High Court of Calcutta through Writ Petition No.3148 (W) of 2003, which was, however, dismissed on 5th March 2003 for want of jurisdiction. The appellant after dismissal of the above said writ petition filed the writ petition in this Court for questioning the legality of the original dismissal order passed by the appellate authority. The learned writ court noticing the plea of guilt taken by the appellant before the Summary Security Force Court found no merit in the writ petition and accordingly dismissed the same by order dated 17.03.2006, impugned in this appeal. 5. We have heard the learned counsel for the parties. 6. The contention of learned counsel for appellant in the first place is that the incidents on which the appellant was charge sheeted do not constitute the offence under Section 21 (2) of the BSF Act. As according to him, the appellant was not feeling well and, therefore, was within his rights to decline the meals. His second submission is that the plea of guilt which is said to have made by the appellant could not be validly relied upon by the Summary Security Force Court for conviction of the appellant, as the procedure for recording the same has not been strictly followed inasmuch as it does not bear the signatures of the appellant. Therefore, according to the learned counsel for appellant punishment of dismissal imposed upon the appellant is illegal. 7. Mr. Magoo, learned counsel for respondents submits that the appellant used abusive language against the superior officer while disobeying his lawful command, his act, therefore, squarely falls within the ambit of Section 21(2) of the BSF Act. He further submits that the appellant admitted the guilt in presence of his superior officers before the Summary Court, therefore, same was validly accepted for recording conviction of the appellant. He further submits that the appellant admitted the guilt in presence of his superior officers before the Summary Court, therefore, same was validly accepted for recording conviction of the appellant. He argues that the obtaining of signatures of appellant was not necessary in terms of Rule 142(2) of the BSF Act. Section 21 of the BSF Act reads as under:- "Disobedience to superior officer: -- Any person subject to this Act who disobeys in such manner as to show a wilful defiance of authority any lawful command given personally by his superior officer in the execution of his office whether the same is given orally, or in writing or by signal or otherwise, shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned. (2) Any person subject to this Act who disobeys any lawful command given by his superior officer, shall, on conviction by a Security Force Court. (a) if he commits such offence when on active duty, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned, and (b) if he commits such offence when not on active duty, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned." From the bare reading of Section 21, it is manifest that any person who disobeys any lawful command given by his Superior officer commits the offence under the Section. `Lawful command of an officer to his subordinate postulates a command issued in performance of his official duties, for which his subordinate under the performance of his dutie is bound to obey. Meaning thereby, that such a subordinate legally has no option but to obey the same. 8. In the present case the appellant is alleged to have refused to take i meals. To eat or not to eat meals is in the discretion of every person. No one can legally compel the other person to eat against his wishes. If the appellant did not wish to eat, he could not be legally compelled by his officer to eat. To eat or not to eat meals is in the discretion of every person. No one can legally compel the other person to eat against his wishes. If the appellant did not wish to eat, he could not be legally compelled by his officer to eat. The command of the officer to the appellant, therefore, cannot be deemed to be lawful and, as such, refusal of the appellant to eat does not come within the expression `wilful defiance so as to expose him to the commission of the offence as contemplated by Section 21 of the Act, use of abusive language being not the part of the charge against the appellant. Therefore, conviction and punishment imposed upon the appellant cannot be sustained in law. 9. This apart the fact remains that the appellant has been convicted and sentenced on the basis of his plea of guilt. The plea of guilt recorded by the Court does not bear the signatures of the appellant. The question arising for consideration, therefore, is whether obtaining of signatures was necessary. In a case Union of India and ors vs. Ex-Havildar Clerk Prithpal Singh and Ors (KLJ 1991 page 513), a Division Bench of this Court has observed: "The other point which has been made basis for quashing the sentence awarded to respondent-accused relates to clause (2) of rule 115. Under this mandatory provision the court is required to ascertain, before it records plea of guilt of the accused, as to whether the accused undertakes the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of charge to which he has pleaded guilty. The Court is further required under this provision of law to advise the accused to withdraw that plea if it a appears from summary of evidence or otherwise that the accused ought to plead not guilty. How to follow this procedure is the main crux of the question involved in this case. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate of the same. We may take it that the signature of the accused are not required even after recording plea of guilt but as a matter of caution same should have been taken." 10. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate of the same. We may take it that the signature of the accused are not required even after recording plea of guilt but as a matter of caution same should have been taken." 10. Rule 125 of the Rules under the Army Act corresponds to Rule 142 of the Rules under the BSF Act, which reads: "142. General plea of `Guilty" or "Not Guilty". -- (1) The accused persons plea of "Guilty" or "Not Guilty" (or if he refuses to plead or does not plead intelligibly either one or the other), a plea of "Not Guilty" shall be recorded on each charge. (2) If an accused person pleads "Guilty", that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he had pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty. (3) Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plead thereto, and a record to that affect shall be made in the proceedings of the Court." 11. Admittedly, in the present case signatures of the accused/appellant have not been obtained on the plea of guilt recorded by the BSF Court which as matter of caution must have been obtained and nor it is revealed from the record that the appellant was ever informed about the general effect of the plea of guilt. 12. Mr. Admittedly, in the present case signatures of the accused/appellant have not been obtained on the plea of guilt recorded by the BSF Court which as matter of caution must have been obtained and nor it is revealed from the record that the appellant was ever informed about the general effect of the plea of guilt. 12. Mr. Magoo, was pointy asked to indicate from the record as to whether the appellant was made aware of the nature of the charge and nature of the general effect on his plea of guilt. Mr. Magoo, however, submits that there is nothing available on the record to show that the appellant was made aware of the said fact. 13. In this view of the matter it is evident that the procedure prescribed for recording the plea of guilt was not followed strictly and this coupled with the absence of signatures of the appellant on the plea of guilt renders the same invalid. The alleged plea of guilt, therefore, in our view could not be made basis for conviction of the appellant. 14. For the above reasons, in our view the order impugned in this appeal is not legally sustainable. We, therefore, allow the writ petition, set aside the impugned order dated 17.03.2006 and quash the dismissal order dated 19th November 2001, as well as the orders of the appellate authority dated 15th November 2001 and 28th November 2002. The appellant shall be entitled to all the consequential benefits. Appeal is, accordingly, allowed.