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2010 DIGILAW 73 (JK)

Suresh Kumar v. Union Of India

2010-02-18

MOHAMMAD YAQOOB MIR

body2010
1. Petitioner has been tried by a Summary Security Court on 3rd October, 2001. The sentence so recorded is as under: "To be dismissed from service". 2. In accordance with the sentence passed, petitioner has been struck off from the strength of 28th Bn. BSF C/O 56 APO by the respondent No 5 (Commandant) on the same day i.e. 3rd October, 2001. 3. Quashment of the said order including the charge framed against the petitioner is sought, as a necessary corollary relief for reinstatement has been prayed for. 4. Petitioner enrolled as Constable on 12th of July, 1989 was posted in 28th Bn. of BSF. On 14th of September, 2001 while being posted at Picket at Sauji had left the picket along with Motorola set without permission of his superiors so is alleged to have committed the offence as covered by Section 16(d) of the Border Security Force Act, 1968 (hereinafter for short referred to as "the Act"). The petitioner has been proceeded in accordance with Chapter VII of the Border Security Force Rules, 1969 (hereinafter referred to as "the Rules"). Proceedings were initiated as required in terms of Chapter IX of the Rules before the Summary Security Force Court wherein petitioner pleaded guilty resultantly has been sentenced as aforesaid. 5. Aggrieved thereof instant petition has been filed wherein it is contended that the petitioners dismissal from service is illegal as the provision of the Act and the Rules have not been strictly followed when compliance thereof is mandatory. Non compliance thereof has infringed the valuable right of the petitioner. 6. In opposition it has been contended that the provisions of the Act and the Rules as far as applicable have been strictly followed and complied with. 7. Record of the trial proceedings has been produced for perusal. 8. Considered. 9. From the record what emerges is that the petitioner was enrolled in BSF as Constable, on 14.9.2001 was posted at Picket (FDL Sauji), on the same day Assistant Commandant, Ravish Sharma, (Coy Commander F-Coy) of the Unit at about 0900 hours left to attend the Commandants Conference at Battalion Headquarters, Mandi Mendhar, wherein he was informed that the troops of 11 MLI had seen some militants in the area near FDL, Sauji. Thereafter at about 1400 hours information had been received from FDL Sauji that petitioner has been apprehended by a party of 11 MLI as he was found hiding in a civilian house along with Motorola radio set which was recovered from his possession. The act of the petitioner having left the picket without permission was treated as indiscipline, more particularly in a very high sensitive militancy prone area of Line of Control. It would also emerge from the reply filed by the respondents that prior to this incident earlier during the period from 1991 to 1998, five times the petitioner was punished, twice under Section 19(b), once under Section 19(A), one each under Section 40 and Section, 26 of the BSF Act, so as to show that the petitioner is an indisciplined soldier habitual of overstaying without leave and consuming liquor. The petitioner was charged for leaving his picket without orders from his superior officers and carrying one Motorola set bearing No. 3555 unauthorizedly. 10. In terms of Rule 14(A) of the Rules, the officers and other members of the Force stand classified in accordance with their ranks in the categories, such as: (a) Officer, (b) Subordinate Officer, (c) Under Officer, (d) Enrolled persons other than Under Officers. 11. Petitioner falls within category (d). The procedure for investigation and summary disposal is provided under Chapter (VII) of the Rules. Rule 43 of the Rules provides that where a person, like petitioner, has committed an offence punishable there-under, the allegation shall be reduced to writing in the form set out in Appendix IV. 12. From the perusal of record of trial proceedings, it is quite evident that Ruler 43 has been complied. 13. In terms of Rule 45 of the Rules, the charge is required to be heard by the Commandant. The charge and the statements of witnesses, if recorded, is required to be read over to the accused. In case written statements of the witnesses are not available, the Commandant is required to hear any witness as he may consider essential to enable him to determine the issue but while doing so the accused has to be given opportunity to cross examine the witnesses and to make a statement in his defence. In case written statements of the witnesses are not available, the Commandant is required to hear any witness as he may consider essential to enable him to determine the issue but while doing so the accused has to be given opportunity to cross examine the witnesses and to make a statement in his defence. After doing so in terms of sub-rule 2 of Rule 45, the Commandant can award punishment, dismiss the charge or remand the accused, for preparing a record of evidence or for preparation of an abstract of evidence against him or remand him for trial by a Summary Security Force Court. 14. This Rule has not been complied with as the record of the trial proceedings would indicate that the Commandant is not shown to have complied with Clause (b) of Rule 45(1) because neither it is shown that the Commandant has recorded statement of any witness nor it is shown that the accused (petitioner) has been given any opportunity to cross examine the witnesses. It is only after cross examination of the witnesses, the accused was required to make a statement in his defence. Statement of the accused, no doubt, has been recorded on conclusion of the hearing on 17.9.2001, then on the same day i.e. 17.9.2001 Commandant has issued the orders to the following effect "Record of evidence ordered". 15. In terms of Rule 48 of the Rules, the Commandant has detailed Shri Ajit Singh Yadav, Second-in-Command, IRLA No. 34 122, for preparing the record of evidence as is clear from the order recorded by the Commandant on 17.9.2001. In compliance thereof, officer detailed has recorded evidence from 18.9.2001 to 24.9.2001. Some of the witnesses are also shown to have been cross examined by the accused (petitioner), on 24.9.2001 itself it is recorded that the accused (petitioner) has been given chance to make statement if he so wishes as he is not bound to make the same and is also cautioned that in case he makes a statement, same shall be taken down in writing and can be used in evidence. This has been done as required in terms of sub-rule 3 of Rule 48 of the Rules. The accused (petitioner) on the same day i.e. 24.9.2001 is shown to have refused to make any statement. 16. This has been done as required in terms of sub-rule 3 of Rule 48 of the Rules. The accused (petitioner) on the same day i.e. 24.9.2001 is shown to have refused to make any statement. 16. Finally in terms of sub-rule 8 of Rule 48 of the Rules certificate has been recorded to the effect that the record of evidence was made in presence and hearing of the accused. 17. On 25.9.2001 charge sheet has been framed by the Commandant. Then proceedings of Summary Security Force Court have been held on 3rd October, 2001 wherein accused (petitioner) pleaded guilty and has been sentenced as stated above. 18. Learned counsel for the petitioner would contend that the rules in particular Rule 49 of the Rules has not been complied with. When it is so, the proceedings are liable to be set aside. In support of this contention, reliance has been placed on the judgment captioned Union of India & Ors. v. A. K. Pandey (2009 AIR SCW 6354). The contention made has a prevailing force. Rule 49 of the Rules is reproduced as under:- "49. Abstract of evidence.--(1) An abstract of evidence shall be prepared either by the ordering it or an officer detailed by him. (2) (a) The abstract of evidence, shall include-- (i) signed statements of witnesses wherever available or a precise thereof, or (ii) copies of all documents intended to be produced at the trial. (b) Where signed statements of any witnesses are not available a precise of their evidence shall be included. (3) A copy of the abstract of evidence shall be given by the officer making the same to the accused and the accused shall be given an opportunity to make a statement if he so desires after he has been cautioned in the manner laid down in sub-rule (3) of rule 48: Provided that the accused shall be given such time as may be reasonable in the circumstances but in no case less than twenty four hours after receiving the abstract of evidence to make his statement." 19. The plain reading of the rule would provide that a copy of the abstract of evidence shall be provided to the accused and thereafter accused has to be given a reasonable time but in no case less than 24 hours after receiving the abstract of evidence, to make his statement. 20. The plain reading of the rule would provide that a copy of the abstract of evidence shall be provided to the accused and thereafter accused has to be given a reasonable time but in no case less than 24 hours after receiving the abstract of evidence, to make his statement. 20. Record of the trial proceedings would show that neither copies of the documents aforesaid have been supplied to the accused (petitioner) nor 24 hours time has been given to him for making statement, instead recording of evidence has been concluded on 24.9.2001 and on the same date he has been asked if he wants to make the statement when he was required to be given 24 hours time in any case. So the admitted position is that Rule 49 of the Rules has not been followed. 21. The object of providing not less than 24 hours after receiving the abstract of evidence to make statement has a logic and cannot be under estimated from the point of view of the accused. The rule has been framed in a manner which has an object of extending certain safeguards to the accused before he may accept or refuse to make a statement as required. The object is to give the accused an opportunity to coolly think over the evidence as has come on record and to make such a statement as may take care of his interests. Though the accused (petitioner) has been asked if he wants to make statement which he has declined but 24 hours requisite time has not been given to him which is a serious violation to proviso to sub-rule 3 of Rule 49 of the Rules. Petitioner has been deprived of a reasonable opportunity to think of making defence oriented statement. 22. The observance of rules particularly sub-rule 3 of Rule 49 is mandatory. The wording of sub-rule 3 is quoted in a manner which would suggest its observance mandatorily. Violation of the mandate renders the subsequent proceedings as illegal. The principle laid down in the judgment Union of India & Ors. v. A.K. Panday as referred to by learned counsel has an application. 23. In the reported case scope of rule 34 of the Army Rules was considered. The said Rule would provide for 96 hours interval between the accused being charged for which he has to be tried and his arraignment. v. A.K. Panday as referred to by learned counsel has an application. 23. In the reported case scope of rule 34 of the Army Rules was considered. The said Rule would provide for 96 hours interval between the accused being charged for which he has to be tried and his arraignment. The interval time as prescribed has been held to be read absolute. It shall be quite apt to quote para 22 of the said judgment: "22. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the next of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the context otherwise, in our judgment, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in rule 34 must be read absolute. There is a purpose behind this provision : that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses, he may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the time frame provided in Rule 34 has definite purpose and object6 and must be strictly observed. Its non-observance vitiates the entire proceedings." 24. While applying the principle as laid down to the position of the present case. Rule 49 of the Rules was mandatorily to be complied with specific in its terms. 25. As per sub-rule 3 of Rule 48, accused has been cautioned but requisite time as mandated by Rule 49 has not been given to him, a serious violation. Therefore, based on the abstract of evidence regarding which accused (petitioner) has been deprived of making any statement, the Summary Court proceedings are liable to be set aside. Same are set aside. The order of dismissal is also set aside. It shall be open for the respondents to proceed against the petitioner afresh after strictly following the rules and procedure as applicable, otherwise petitioner shall stand reinstated but shall not be paid any salary for the period he has remained out of service, however, the period shall be counted for his pensionary purposes. 26. Disposed of as above. 27. Record of the trial proceeding shall be returned to the counsel for respondents.