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Gauhati High Court · body

2009 DIGILAW 837 (GAU)

Siya Ram v. Union of India

2009-11-27

A.C.UPADHYAY, BIPLAB KUMAR SHARMA

body2009
JUDGMENT A.C. Upadhyay, J. 1. This appeal filed by the writ Petitioner i.e. Appellant herein, is directed against the order of dismissal of W.P. (C) No. 442 of 2006, passed by the learned Single Judge, wherein the penalty of reduction in rank, from Havildar to Constable, imposed on the writ Appellant by the Respondents vide order dated 10.8.01, was challenged. 2. We have heard Mr. K. Khan, learned Counsel for the Appellant and Mr. S.C. Shyam, learned CGC appearing on behalf of the Respondents. 3. The facts, which are required to be recounted for disposal of this appeal, may be narrated, in brief as follows: On successful completion of training, the writ Appellant was enrolled in the Border Security Force on 27.5.83 as a driver. After having rendered sincere service as a driver of the Boarder Security Force, for almost 14 years, the Appellant, in normal course of duty, was driving a Tata 407 Mini Truck bearing No. DL 1L 1089. On 09.01.1997, in a convoy of 5 vehicles, under the command of Asstt. Commandant of the unit. The Appellant's Truck was plying in serial No. 3 of the convoy and the vehicle had no iron bars and hoods on the carriage. Besides goods loaded in the Mini Truck driven by the Appellant, six other Jawans were travelling in the carriage on the direction of the officer concerned. While negotiating U-turn, the Truck driven by Appellant met with an accident. In the accident the Appellant and the cabin crew escaped with some minor injuries, however all five Jawans travelling on the carriage and the goods loaded in the vehicle were thrown on the ground. All other Jawans sustained minor injuries on their person; however, L.N.K. Abdul Aziz succumbed to the injuries sustained by him in the accident. An FIR was lodged with the Officer in-charge of Tengnoupal P.S., Chandel, Manipur, by the Respondent No. 2, Commandant of BSF, which was registered as FIR No. 3(1)/97. The said case was eventually disposed of by the learned C.J.M. Chandel by accepting the final report vide order dated 04.04.98. 4. During the pendency of the said criminal case, the Respondent No. 4 initiated a Summary Trial proceeding against the Appellant as per provision of Section 53 of the B.S.F. Act, 1968, for which recording of evidence was carried out by examining the material witnesses. 4. During the pendency of the said criminal case, the Respondent No. 4 initiated a Summary Trial proceeding against the Appellant as per provision of Section 53 of the B.S.F. Act, 1968, for which recording of evidence was carried out by examining the material witnesses. The Appellant, further, contended that Shri Kuldip Singh, who was sitting beside the Driver's seat in the truck driven by the Appellant, deposed in the Security Force Court Proceeding that at the time of the accident the truck was proceeding in normal speed and it was moving in a convoy of 5 vehicles. 5. The Respondent No. 4, after initiating S.S.F.C. and approval of the competent authority vide his order dated 24.9.97, imposed punishment of "severely reprimanded" upon the Appellant for rash and negligent driving. Further, vide order dated 5th July' 97 the Respondents ordered penal recovery of a sum of Rs. 3,621/- from the Appellant as repairing costs for the damage caused to the vehicle and the weapon in the accident. Eventually the aforesaid penal recovery was realised from the salary of the Appellant. Thus, the penalty of severe reprimanding and the penal recovery of the sum aforesaid was carried out against the writ Appellant. 6. Thereafter, the Respondent No. 4 cancelled the aforesaid order dated 24.9.97 and issued another order dated 5.12.97 giving a fresh direction for holding a trial by Summary Security Force Court against the Appellant in terms of the provisions of Section 46 of the BSF Act, 1968. The Appellant was accordingly charged sheeted for rash and negligent driving under Section 46 of the Act and proceeded against. Vide order dated 20.03.98 in the trial by Court martial the Appellant was again found guilty and imposed with a punishment of reduction of one year of his service, thereby reducing his promotion and pension benefits by one year. However, surprisingly a copy of the order dated 20.03.98 was never served upon the Appellant. 7. On 03.05.01 again the Respondents reviewed its order of imposing punishment against the Appellant and submitted charge sheet, once again, alleging commission of offence of under Sections304-A/338 I.P.C. and under Section 46 of the B.S.F. Act, 1968 (hereinafter Act) for having committed an act prejudicial to the discipline and good order of the Border Security Force. 7. On 03.05.01 again the Respondents reviewed its order of imposing punishment against the Appellant and submitted charge sheet, once again, alleging commission of offence of under Sections304-A/338 I.P.C. and under Section 46 of the B.S.F. Act, 1968 (hereinafter Act) for having committed an act prejudicial to the discipline and good order of the Border Security Force. On conclusion of the S.F.C. proceeding the Respondent No. 4 by his order dated 10th August, 2001 imposed upon the Appellant punishment of reduction in rank to Constable w.e.f. 21.07.01. 8. Fact remains that the investigation carried out by the investigating police officer of Chandel P.S. in terms of the FIR 3(1)/97 lodged by the Respondent authority, for alleged accident caused by the Appellant, submitted Final Report exonerating the Appellant from the accusation levelled against him. The Final Report so submitted was also accepted on 4.4.1998 by the learned C.J.M. Chandel. 9. The Appellant was served with the copy of the charge sheet aforesaid on 3.5.2001 by the Respondent BSF authority after his transfer to Shillong Unit and was informed by the Respondent authority that Summary Security Force Court will be held on 5.5.01 against him. Immediately thereafter, the Appellant was placed under suspension pending final decision of the proceeding drawn against him. Thereafter, the Respondents vide order dated 10.8.2001 awarded punishment of reduction in rank to the post of constable w.e.f. 21.7.01. The appeal filed by the Appellant against the order dated 10.8.01 did not bear any fruit and therefore the Appellant approached the High Court by filing writ petition, which was also dismissed, giving rise to this writ appeal. 10. Learned Counsel for the Appellant submitted that since the Final Report was accepted by the learned CJM, Chandel, on 04.04.1998 the Respondent could not have proceeded against the Appellant once again to initiate the Summary Security Force Court Proceedings. More so, two Security Force Court proceedings resulting in convictions with declaration of punishment on the trot one after the other violates provision Section 75 of the Act. Learned Counsel pointed out that by ignoring the investigation made by civil police authority the Respondent authority violated the provisions of "the Criminal Court and Border Security Force Court (Adjustment of Jurisdiction) Rules, 1969' (hereinafter "Adjustment of Jurisdiction Rules, 1969"). Learned Counsel pointed out that by ignoring the investigation made by civil police authority the Respondent authority violated the provisions of "the Criminal Court and Border Security Force Court (Adjustment of Jurisdiction) Rules, 1969' (hereinafter "Adjustment of Jurisdiction Rules, 1969"). The learned Counsel submitted that the FIR filed by the BSF authority at Tengnoupal Police Station, Chandel, which was registered as FIR Case No. 3(1)97, for rash and negligent driving, which culminated in filing of the Final Report reached its logical conclusion on acceptance of the Final Report by a Court of competent jurisdiction. Therefore, initiating any further proceedings, after having dealt with the Appellant in terms of the provision of Criminal Procedure Code, 1973, is barred under Section 75 of the BSF Act, 1968. The learned Counsel further submitted that there is no provision in the BSF Act to set aside the order dated 5.7.97, i.e. the Summary Trial proceeding by a superior authority. It has been alleged that the BSF authority, in illegal exercise of power, set aside the order dated 5.7.97 and initiated Security Force Court Proceeding against the Appellant under Section 46 of the BSF Act. 11. Though the reasons for setting aside the order of imposing punishment was assigned to procedural irregularities, however, a copy of such order passed on 20.3.98 was not served upon the Appellant. The learned Counsel pointed out that the learned Single Judge overlooked the fact that in the second and the third Summary Security Force Court proceedings, though the Appellant was charged for negligent driving resulting in the accident, however, no attendant facts and circumstances on record were produced by the Respondents in the trial by Summary Security Force Court to show that the ingredients of charge under Section 304A IPC against the Appellant were, prima facie, substantiated and established to finally hold him guilty to award punishment accordingly. The method adopted by the Respondents only shows that the Respondents continued to pursue and persecute the Appellant until a desired and/or selected punishment was secured. 12. The learned Counsel for the Respondents, controverting the argument advanced on behalf of the Appellant, submitted that the Appellant was proceeded against in terms of the BSF Act and Rules for alleged negligent driving and for causing serious injuries to the BSF personnel including death of one of the Jawans travelling in the said vehicle. 12. The learned Counsel for the Respondents, controverting the argument advanced on behalf of the Appellant, submitted that the Appellant was proceeded against in terms of the BSF Act and Rules for alleged negligent driving and for causing serious injuries to the BSF personnel including death of one of the Jawans travelling in the said vehicle. Clarifying the earlier remiss of the Department in taking up proceeding against the Appellant, the learned Counsel for the Respondents, submitted that the Appellant was charge sheeted under Section 46 of the Act and punishment of "severely reprimanded", and fine was imposed on him. However, when the order was communicated to the higher authority in the Respondent's Headquarters, it was found that the offence alleged against the Appellant was required to be tried in terms of the provisions of Section 46 of the Act and accordingly fresh trial was initiated and punishment as awarded earlier was set aside. The learned Counsel further submitted that the proceeding under Section 46 of the BSF Act was conducted strictly in accordance with BSF Act and Rules hereunder and after affording adequate opportunities to the Appellant. Learned Counsel for the Respondent contended that since the Court Martial Proceeding were set aside and punishment awarded was not given effect to, the position of the Accident Case remained as if no action was initiated against the Appellant and thus refuted the allegations that the Respondent authority played with the Appellant by proceeding against the Appellant under Section 46 of the BSF Act, afresh repeatedly, without jurisdiction. However, the learned Counsel for the Respondent could not clarify under which provision of the Act or the Rule the proceeding was set aside by the Respondents. 13. The learned Counsel for the Respondent submitted that in order to attract the provisions of Section 75 of the BSF Act, 1968, there has to be existence of proceeding against the incumbent in a Court of Law or Judicial Tribunal of competent jurisdiction and further a person must have been prosecuted under the previous proceeding and either conviction or acquittal must have been in force at the time of trial. In terms of the provision of under Section 3(38) of the General Clauses Act. 1897 the offence alleged in the second proceeding must be the same as that of the first proceeding, for which the person was prosecuted and punished. In terms of the provision of under Section 3(38) of the General Clauses Act. 1897 the offence alleged in the second proceeding must be the same as that of the first proceeding, for which the person was prosecuted and punished. It is admitted by the Respondent authority that in view of the acceptance of the Final report by the learned Chief Judicial Magistrate, Chandel, in respect of the investigation arising out of the FIR filed by them, Respondent authority had decided to proceed against the Appellant under the BSF Act 1968. 14. However, though the FIR was filed in the Civil Police Station at Chandel, immediately after the accident by the Respondent authority, the Respondent authority being entrusted with the responsibility of initiating Court Martial proceeding as per provision of BSF, 1968 against the Appellant did not bother to look at the provision of laws and Rules prevalent at the relevant time and neither any effort was made to enquiry about the fate of the FIR filed by them in a Civil Police Station. The BSF Authority remained silent even after receiving intimation about filing of the Final Report by the investigating officer. In fact, the Respondents carried on with their proceedings one after the other without earring for the provisions of law and Rules prescribed therein. 15. The report of the learned Chief Judicial Magistrate, Chandel clearly reflects that even in spite of repeated issuance of notice, the Respondent authority did not come forward to take recourse to BSF Act, 1968 against the Appellant in terms of the Rules made there under. When the Respondent/BSF Authority themselves filed the FIR in a Civil Police Station, a duty was cast upon them, to ascertain the status of the FIR filed by them and thereafter formally approach the Court of learned C.J.M., Chandel, for appropriate necessary action in terms of the provision of the 'Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969'. But fact remains that the Respondent authority ignored the notice issued by the Court of Chief Judicial Magistrate, Chandel. Obviously, it was not proper and justified on the part of the Respondent authority not to react to the notice, issued by the learned Chief Judicial Magistrate, Chandel, in respect of Final Report in the criminal proceeding against the Appellant. But fact remains that the Respondent authority ignored the notice issued by the Court of Chief Judicial Magistrate, Chandel. Obviously, it was not proper and justified on the part of the Respondent authority not to react to the notice, issued by the learned Chief Judicial Magistrate, Chandel, in respect of Final Report in the criminal proceeding against the Appellant. Surprisingly even in spite of having full information about the development and logical conclusion of an investigation by a Court of competent jurisdiction, the Respondents did not care to bother about it existence neither did they submit any protest petition against the Final Report submitted by the Investigating Police Officer, before the learned Chief Judicial Magistrate, Chandel. 16. Learned Chief Judicial Magistrate, Chandel, by issuing notice adequately complied with the provisions of Rule 3 of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969. 17. Now the question arises whether such orders as aforesaid passed by two different forum of competent jurisdiction should be allowed to remain on the glare of each other. Should the BSF Authority ignore the order passed by the learned Chief Judicial Magistrate, Chandel? 18. Provision contained in Section 475 of the Code of Criminal Procedure takes away the jurisdiction of ordinary Criminal Courts with respect to certain class of people. Suitable provisions have been made to avoid the conflict of jurisdiction between the normal Criminal Court and the Security Force Courts for BSF personnel by enacting the "Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969" (hereinafter "Adjustment of Jurisdiction Rules, 1969"). Section 80 of the BSF Act provides that when a Criminal Court and Security Force Courts have each jurisdiction in respect of an offence, it shall be the discretion of the Director General or Inspector General or Deputy Inspector General of the command where the accused is serving, to decide before which Court the proceedings shall be initiated. 19. In normal course for a penal offence, a choice of jurisdiction is made at the very initial stage, i.e. immediately after the occurrence. After the occurrence of a 'civil offence' had taken place, the Respondent authority decided to hand over the investigation to the civil police and accordingly lodged the FIR in a civil Police Station for alleged rash and negligent driving by the Appellant. After the occurrence of a 'civil offence' had taken place, the Respondent authority decided to hand over the investigation to the civil police and accordingly lodged the FIR in a civil Police Station for alleged rash and negligent driving by the Appellant. Since the FIR was filed in the Civil Police Station by the Respondent authorities, now in terms of the Adjustment of Jurisdiction Rules, 1969, the Respondent had an option to approach the Court of learned Chief Judicial Magistrate, Chandel. But they did not care to pay any heed to repeated notice issued by the learned Chief Judicial Magistrate, Chandel. Thus, ever prior to filing of the report of investigation by the Civil Police in respect of civil offence the Respondent authority concluded the summary trial and awarded and imposed penalty and realized penal deduction. 20. Rule 3 read with Rules 4 and 5 of the 'Adjustment of Jurisdiction Rules, 1969', confers discretion to the Magistrate, to decide the question as to whether proceeding should be continued in ordinary Court of Criminal jurisdiction; but if the designated officer does not so exercise his discretion, it will be open to the Criminal Courts to exercise its criminal jurisdiction as provided by law. 21. Rule 4 of BSF Code (Adjustment of Jurisdiction) Rules, 1969 Rules provides that before proceeding against such person in terms of provision of Rule 3A, the Magistrate is required to issue notice to the Commandant of the B.S.F unit. On perusal of the order dated 4.4.98 passed by the learned CJM, Chandel, it transpires that even in spite of repeated notices upon the Commandant, BSF, the Respondents failed to appear before the learned CJM, Chandel to show cause as to why the F.R. should not be accepted. However, apparently it appears that the learned CJM proceeded with the matter by recording reasons and his opinion as to why he had to proceed to accept the Final Report submitted by the Investigating Agency. Acceptance of the F.R. by the Court implies closing of the investigation against the by operation of law, the accused is relieved of the charges levelled against him. Acceptance of the F.R. by the Court implies closing of the investigation against the by operation of law, the accused is relieved of the charges levelled against him. As it transpires from the order passed by the learned CJM, Chandel, the procedure provided under Rules 5 and 6 of the BSF Act was never resorted to by the BSF authority before proceeding against the Appellant even in spite of receipt of due notice from the learned Chief Judicial Magistrate, Chandel. For better appreciation, Rules 5 and 6 of the BSF Code (Adjustment of Jurisdiction) Rules, 1969 is depicted below, reads as follows: 3. Trial of person subject to the Act. - Where a person subject to the Act, is brought before a magistrate and charged with an offence for which he is liable to be tried by the Border Security Force Court, such a Magistrate shall not proceed to try such persons or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless: (a) he is of opinion, for reasons to be recorded in writing that he should so proceed without being moved thereto by the Competent Authority; or (b) he is moved thereto by such authority. 4. 4. Notice by Magistrate - Before proceeding under Clause (a) of Rule 3, the Magistrate shall give written notice to the commandant of the accused and until the expiry of a period of: (i) three weeks, in the case of a notice given to a commandant in command of a unit or detachment located in any of the following areas, that is say: (a) State of Nagaland; (b) Mizo Hill, Garo Hill, Khasi and Jaintia Hill and North Cachar Hill Districts of Assam, or (ii) ten days in the case of a notice given to any other commandant in command of a unit or detachment located elsewhere in India, from the date of the service of such notice, he shall not: (a) convict or acquit the accused under Section243 or Section 245 or Section 247 or Section 248of the Code of Criminal Procedure, 1898 (5 of 1898) or hear him in his defence under Section244 of the said Code; or (b) frame in writing a charge against the accused under Section 254 of the said Code; or (c) make an order committing the accused for trial by the High Court or the Court or Sessions under Section 213 of the said Code; or (d) transfer the case for inquiry or trial under Section 192 of the said Code. 5. Procedure on notice to the Magistrate - Where within the period mentioned in Rule 4 above, or at any time thereafter before the Magistrate has done any act or made any order referred to in that rule, the commandant of the accused or the competent authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a Border Security Force Court, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him with the statement prescribed in Sub-section (1) of Section 549of the Code of Criminal Procedure, 1898 (5 of 1898) to the authority specified in sub-section. 6. 6. Procedure on notice to Magistrate before commencement of trial - Where a Magistrate has been moved by the competent authority under Clause (b) of Rule 3, and the Commandant of the accused or the competent authority, as the case may be, subsequently gives notice to such Magistrate that in the opinion of such authority the accused should be tried by a Border Security Force Court, such Magistrate if he has not before receiving such notice, done any act or made any order referred to in Rule 4, shall stay proceedings, and, if the accused is in his power or under his control, shall in the like manner deliver him, with statement prescribed in Sub-section (1) of Section 549 of the Code of Criminal Procedure, 1898 (5 of 1898) to the authority specified in the said sub-section). 22. Hon'ble Supreme Court in M.C. Mehta v. Union of India (2008) 1 SCC 407 , held that once a final report has been filed in terms of Sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If the Magistrate errs while passing a judicial order, the same may be a subject matter of appeal or judicial review. There may be a possibility of the prosecuting agencies not approaching the higher forum against an order passed by the learned Magistrate, but the same by itself would not confer a jurisdiction on the higher forums to step in. 23. Hon'ble Supreme Court in the case of Delhi Special Police Establishment New Delhi v. Lt. Col. S.K. Loraiya reported in (1972) 2 SCC 692 discussing the provision of the Criminal Courts and Courts-Martial (Adjustment of Jurisdiction) Rules, 1952 observed as follows: 5. The Central Government has framed under Section 54(1), Code of Criminal Procedure, rules which are known as the Criminal Courts and Courts-Martial (Adjustment of Jurisdiction) Rules, 1952. The relevant rule for our purpose is Rule 3. It requires that when a person subject to military, naval or air force law is brought before a Magistrate on accusation of an offence for which he is liable to be tried by a Court-Martial also, the Magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. It requires that when a person subject to military, naval or air force law is brought before a Magistrate on accusation of an offence for which he is liable to be tried by a Court-Martial also, the Magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. He may, however, proceed with the case if he is of opinion that he should so proceed with the case without being requested by the said authority. Even in such case, the Magistrate has to give notice to the Commanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of seven days from the service of notice. The Commanding Officer may inform the Magistrate that in his opinion the accused should be tried by the Court-Martial. Subsequent rules prescribe the procedure which is to be followed where the Commanding Officer has given or omitted to give such information to the Magistrate. 6. It is an admitted fact in this case that the procedure specified in Rule 3 was not followed by the Special Judge, Gauhati for framing of charges against the Respondent. Section 549(1), Code of Criminal Procedure, and Rule 3 under which charges were framed are mandatory. Accordingly the charges framed by the Special Judge against the Respondent cannot survive. But counsel for the Appellant has urged before us that in the particular circumstances of this case the Respondent is not 'liable to be tried' by a Court-Martial. 7. Section 122 of the Army Act, 1950, provides that no trial by Court-Martial of any person subject to the Army Act for any offence shall be commenced after the expiry of the period of three years from the date of the offence. The offences are alleged to have committed by the Respondent in November-December, 1962. So, more than three years have expired from the alleged commission of the offence. It is claimed that having regard to Section 122(1), the Respondent is not liable to be tried by court-martial. 24. In Delhi Special Police Establishment New Delhi v. Lt. Col. S.K. Loraiya (supra), the Hon'ble Supreme Court held that the Criminal Case and Court Martial (Adjustment of Jurisdiction) Rules, 1952 are mandatory in nature. It is claimed that having regard to Section 122(1), the Respondent is not liable to be tried by court-martial. 24. In Delhi Special Police Establishment New Delhi v. Lt. Col. S.K. Loraiya (supra), the Hon'ble Supreme Court held that the Criminal Case and Court Martial (Adjustment of Jurisdiction) Rules, 1952 are mandatory in nature. The learned Counsel for the Appellant relying on the above decision submits that provision of Criminal Courts and the BSF Courts (Adjustment of Jurisdiction) Rules, 1969, which is also mandatory in nature was not followed by the Respondents before proceeding against the Appellant even in spite of full information about the pendency of a criminal case under investigation in a Civil Police Station. 25. Similar provision of law has been incorporated by enacting 'Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969', which is mandatory in application in appropriate cases. From the very stance of the Respondent in the present case it appears that there was no awareness of the existence of such a rule regulating adjustment of jurisdiction between the civil administration and the BSF Act. In terms of the provision of Section 80 of BSF Act, when a Criminal Court and Security Force Court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director General or Inspector General or Dy. Inspector General within whose jurisdiction the accused person is serving, to decide before which Court the proceeding shall be instituted. Initial stance of filing the FIR immediately after the occurrence in the Civil Police Station by the Commanding Officer reflect the expression of choice of jurisdiction by the Respondent authority. No order appears to have been passed by the Respondents under Section 80 of the BSF Act deciding to recall the jurisdiction, thus conspicuously ignoring the provisions of 'Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969'. A bare perusal of the order passed by the learned C.J.M. Chandel, accepting the Final report reveals that the concerned authority of the Respondents either did not understand the implications of the notice issued by the Learned C.J.M., Chandel or intentionally ignored it. The Respondent authority approached the investigating officer instead of formally approaching the C.J.M's Court in terms of the Adjustment of Jurisdiction Rules, 1969. Thus the Respondent authority flouted the Adjustment of Jurisdiction Rules, 1969. 26. The Respondent authority approached the investigating officer instead of formally approaching the C.J.M's Court in terms of the Adjustment of Jurisdiction Rules, 1969. Thus the Respondent authority flouted the Adjustment of Jurisdiction Rules, 1969. 26. Learned Counsel for the Respondent relying on the decision of the Apex Court reported in (2001) 2 SCC 386 Om Kumar and Ors. v. Union of India submitted that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules observed as under: 67. But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary, In G.B. Mahajan v. Jalgaon Municipal Council SCC at p. 111, Venkatachaliah, J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India SCC at pp. 679-80, Indian Express Newspapers Bombay (P) Ltd. v. Union of India SCC at p.691, Supreme Court Employees Welfare Assn. v. Union of India SCC p. 241 and U.P. Financial Corp. v. Gem Cap (India) (P) Ltd. SCC at p. 307 while judging whether the administrative action is 'arbitrary' under Article 14(i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always. v. Union of India SCC p. 241 and U.P. Financial Corp. v. Gem Cap (India) (P) Ltd. SCC at p. 307 while judging whether the administrative action is 'arbitrary' under Article 14(i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always. The decision rendered by the Hon'ble Supreme Court relates to situations when administrative action is challenged under Article 14 as being discriminatory, alleging equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as "arbitrary" under Article 14, the principle of secondary review based on Wednesbury principles applies. 27. However, we are of the considered view that when a Criminal charge in respect of alleged commission of Civil Offence is tried by a Security Force Court (S.F.C.) constituted under the Border Security Force Act 1968, S.F.C. cannot act like as any other administrative bodies but it has to act according to the procedures provided in the Rules and the proceedings can not be treated as administrative proceedings. Over and above, a duty is cast upon the Security Force Court to ensure that principles of Criminal jurisprudence is followed in holding the offender guilty of the charge framed against him 28. A fair trial to an accused facing trial before SFC is required to be ensured by the Respondents authority in terms of the provision of BSF Rules. Very surprisingly enough in this case, every effort was made by the Respondent authority to ensure an appropriate punishment ignoring all such procedural requirements laid in the Rules only for the purpose of enhancing the penalty. The order awarding sentence recorded by the Respondents do not reflect that while awarding punishment to the Appellant in terms of Rule 101 of the BSF Act, previous punishment awarded and/or withdrawn and/or cancelled on the Appellant was taken into consideration. The authority only for the purpose of enhancing the penalty formed an opinion that it was inexpedient to hold a fresh S.F.C. proceeding. The authority only for the purpose of enhancing the penalty formed an opinion that it was inexpedient to hold a fresh S.F.C. proceeding. A.S.F.C. held against an accused should not to be discarded lightly or arbitrarily or out of ulterior motive or merely to secure desired punishment. It may not be in dispute that such biased satisfaction of the authority is not immune from judicial review. 29. Section 75 of the BSF Act prohibits successive trial by the Criminal Courts and Court Martial. Admittedly the same Security Force Court decided to be convened to try the Appellant in respect of four charges in the year 2001 particularly, in the backdrop of the fact that two other proceedings against the Appellant, had been initiated and had also been concluded. There is no information as regards holding of SSFC on 20.03.1998 by the Commandant, Shri C.R. Chauhan of 111 Battalion of BSF. Admittedly, penalty of reduction of one year service and promotion was imposed upon the Appellant for the same charge, however, copy of the order was not given to the Appellant. As stated by the Respondents no effect was given to the aforesaid punishment. However, conviction in another proceedings without formal cancellation of earlier punishment awarded under Section 46 of BSF Act is hit by Section 75 of the Act. 30. The Respondent authority vehemently tried to justify vide their affidavit filed in the writ petition that though the Appellant tried to attribute the responsibility of causing the injury to the BSF personnel and death of one, due to the accident, for having no hood and bar on the carriage of the vehicle, however, with total disregard to the fact and that loaded vehicle got over turned due to high speed and not due to lack of hood and bars, and the Respondents thus justified imposition of punishment on the Appellant. However, in doing so, the Respondent authority did not look into the other extenuating situation, which compelled the Appellant to drive in convoy by maintaining equal speed. On the top of it a vehicle loaded with goods together with six Jawans on the carriage without hoods, was done obviously, on the direction of the senior officer of the unit. 31. However, in doing so, the Respondent authority did not look into the other extenuating situation, which compelled the Appellant to drive in convoy by maintaining equal speed. On the top of it a vehicle loaded with goods together with six Jawans on the carriage without hoods, was done obviously, on the direction of the senior officer of the unit. 31. Apparently, it was not considered by the Respondent while extracting the ingredients of offence under Section 304A IPC that the overload on the vehicle could have multiplied the momentum of the vehicle in the slope which may have resulted imbalance in the U-turn, by making it more vulnerable to accidents. It will be not justified to attribute the cause of accident only due to speed that too when the vehicle was moving in a convoy where all the vehicles are supposed to move in almost in equal speed. Normal assessment would be why did other vehicle in the convoy did not encounter similar problem while negotiating the same U-turn. This simple assessment would have given the answer that it was not the speed only the accident was caused. Therefore, it must have to be the extra load in the carriage, which usually swing over and/or swerve in a U-turn may have been the cause of the accident. A vehicle having more laden weight than other similar kind of vehicle in a convoy, all moving in the same speed, will have a tendency to over turn in a U-turn more easily than any other similar vehicles. All scientific calculations required to select maximum speed in such U-turns and hilly terrains is usually carried out by the authority entrusted for road safety. Generally maximum speed limits in such U-turns/roads/spots are displayed on the road side signboards. This is usually done to warn the unwary drivers to reduce the speed of the vehicles to avoid accident. Thus it may become difficult for drivers to asses the required speed to in such turns while travelling in a convoy, if the leader in the convoy is oblivious and careless. As discussed above, in our considered opinion, rashness and negligence cannot be attributed to the driver of the vehicle, in the peculiar facts and circumstances leading to the accident. 32. As discussed above, in our considered opinion, rashness and negligence cannot be attributed to the driver of the vehicle, in the peculiar facts and circumstances leading to the accident. 32. Though the Respondent authority stated that earlier proceedings initiated against the Appellant and punishments awarded thereto was all set aside, but there is no report of revocation and/or setting aside of the SFC Court held on 20.03.1998 in which penalty of reduction of one year service and promotion was ordered. It has been argued on behalf of the Respondent that since trial was set aside and sentence awarded was not given effect, the position of the instant case remain as if no disciplinary action was ever initiated. However, the Respondent authorities were duty bound to apprise at least the Appellant about the development by taking him into confidence and by supplying him a copy of the order of cancellation of the proceedings. All these cancellations of the proceedings of the S.F.C. one after the other, should have been formally notified to the Appellant, which was apparently not done. Thus in our considered view, for not doing so, visibly the Appellant was prejudiced during the trial of his case in S.F.C. ' 33. Learned Counsel for the Appellant pointed out the in terms of the provision of Section 468 Code of Criminal Procedure no Court shall take cognizance of an offence after the expiry of the period of limitation of three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. 34. Learned Counsel pointed out that only on 5.01.01 the recommendation of the Dy. Inspector General to try the civil offence alleged against the Appellant under Section 304A IPC was given for an offence which took place on 11.01.97. Learned Counsel pointed out that the punishment provided being only 2 (two) years for commission of offence under Section 304A IPC, for causing death by accident, the Respondent authority could not have given recommendation for trial of civil offence, on 5.1.01 i.e. after lapse of three years from the date of occurrence, which was barred by limitation. 35. Section 468 of the Code of Criminal Procedure, 1973 specifies the period of limitation within which the cognizance of an offence can be taken. 35. Section 468 of the Code of Criminal Procedure, 1973 specifies the period of limitation within which the cognizance of an offence can be taken. Clause (c) of Sub-section (2) of Section 468 specifies the period of limitation to be three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. There is no doubt or dispute that the Court has the power to condone the delay. However, the S.S.C. has passed no order condoning the delay in this case. It seems that delay was condoned in this case to proceed against the Appellant, but it was done without notice. 36. In our view, the delay, if any, for launching the prosecution, could not have been condoned without notice to the Respondents and behind their back and without recording any reasons for condonation of the delay and there cannot be any doubt whatsoever that the Appellant was entitled to get an opportunity of being heard before the delay could be condoned. 37. On perusal of the proceedings of the Court of enquiry and the Court-Martial a curious situation has emerged out which reveals that the statement of the same set of witnesses recorded in the Court of enquiry proceedings and the S.F.C. are contradictory. 38. During the Court of enquiry proceedings same set of witness examined immediately after the occurrence either stated that the vehicle was in normal speed or did not know how the accident occurred, however, subsequently when the same set of witnesses were examined in the last SFC, they like a singing group lay blame on the Appellant for driving the vehicle in high speed and for not reducing the speed even on request to do so. This obviously appears to be later development made in the prosecution case, which only multiplied the suspicion regarding the cause of the accident allegedly attributed to the Appellant for high speed. The procedure adopted by the BSF authority is devoid of transparency, fairness and reasonableness which is the foundation of democratic procedure and backbone of fundamental rights. 39. This obviously appears to be later development made in the prosecution case, which only multiplied the suspicion regarding the cause of the accident allegedly attributed to the Appellant for high speed. The procedure adopted by the BSF authority is devoid of transparency, fairness and reasonableness which is the foundation of democratic procedure and backbone of fundamental rights. 39. The learned Counsel for the Appellant submitted that natural justice was denied to him as the authority had a strong and hostile bias to proceed against the Appellant by resorting to irregular procedures only in order to secure a punishment of their choice and further submitted that decision of the reviewing authorities could not cure the initial defect of imposing punishment and awarding penal action by the S.F.C. one after other. In support of his contention, he relied on a decision reported in 1995 Supp (1) SCC 21 : Tilak Chand Magatram Obhan v. Kamala Prasad Shukla and Ors. wherein the Apex Court at para 4 held thus: ...The question which was posed for consideration was: Can a deficiency of natural justice before a trial tribunal be cured by a sufficiency of natural justice before an Appellate Tribunal? Megarry, J., after stating that the sheet should be made as clean as possible; I think it should be the same sheet and not a different one, proceeded to add at p. 720 as under: If the rules and the law combine to give the member the right to a fair trial and the right of appeal, when should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, although not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. In this view of the matter this Court concluded that the decision of the appellate authorities could not cure the initial defect in the constitution of the Enquiry Committee and the consequences flowing from one of the members of the Enquiry Committee being biased. In this view of the matter this Court had allowed the appeal. 40. Apparently in order to secure particular punishments of their choice, SFC proceedings were revised and cancelled one after the others. It seems every effort was made by the Respondent authority to ensure an appropriate punishment ignoring procedural requirements laid in the Rules only for the purpose of enhancing the penalty. 41. In view of the discussions and findings arrived at by us, we hold that the punishment awarded to the Appellant by the Summary Security Force Court has been rendered otiose due to failure of the Respondents to comply with the mandatory requirements of the Act and the Rules, which has occasioned serious prejudice to the Appellant. 42. In the result, the writ appeal is allowed and the impugned order passed by the Respondent authority is hereby set and quashed. However, in the facts and circumstances of the case we pass no order as to costs. Appeal allowed