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Madhya Pradesh High Court · body

2013 DIGILAW 1267 (MP)

Jitender Singh v. Union of India

2013-10-22

SUJOY PAUL

body2013
ORDER The petitioner, a dismissed Constable of Border Security Force (BSF) assailed the order dated 18.5.2011 (Annexure P/1), whereby the disciplinary authority has dismissed him from service and directed him to undergo one year RI in civil jail. The petitioner has also assailed the appellate order dated 27.09.2011 (Annexure P/10), whereby the punishment order is affirmed by the appellate authority. 2. Shri Akshay Verma, learned counsel for the petitioner, submits that the petitioner was served with a charge sheet dated 29.3.2011. The same was followed by an enquiry. The charges against the petitioner were found proved and, therefore, the impugned punishment order was inflicted on him. Learned counsel for the petitioner assailed the disciplinary proceedings, impugned punishment and appellate orders on following counts:- (i) The allegations mentioned in the charge sheet may amount to criminal offence under the Indian Penal Code (IPC) but do not constitute misconduct under the Border Security Force Act, 1968 (hereinafter called as "Act"). (ii) The punishing authority, i.e., Deputy Inspector General (DIG), STC, BSF, was not competent to inflict the punishment. (iii) The respondents have not followed the principles and provisions of the Evidence Act and Code of Criminal Procedure (CrPC). (iv) The medical examination of the complainant/PW1 was not conducted nor any medical report was obtained. Hence, the charge cannot be said to be established. (v) The petitioner although was permitted to engage a friend but the said friend was not permitted to cross-examine the witnesses. (vi) The appellate authority has not given personal hearing to the petitioner. In support of this, he relied on 1984 (3) S.L.R. 424 (Madan Singh, Ex Constable, 10th Battalion, B.S.F. vs. Union of India and others). 3. To elaborate, Shri Verma, learned counsel for the petitioner, submits that the charge of sodomy may be an offence under IPC but it does not form part of any misconduct for which the petitioner can be tried under the Act. It is contended that at the time of incident the petitioner was in the strength of 35th Battalion, BSF, situated at Meghalaya. Thus, the Commandant, STC, BSF Tekanpur was not competent authority to remand the petitioner for trial by Summary Security Force Court (SSFC). It is contended that the charge sheet could have been sent to petitioner at his parent unit of 35th Battalion, BSF and the Commandant of 35th Battalion, BSF was competent to take disciplinary action against the petitioner. Thus, the Commandant, STC, BSF Tekanpur was not competent authority to remand the petitioner for trial by Summary Security Force Court (SSFC). It is contended that the charge sheet could have been sent to petitioner at his parent unit of 35th Battalion, BSF and the Commandant of 35th Battalion, BSF was competent to take disciplinary action against the petitioner. Thus, it is contended that the DIG, STC, BSF was disqualified to conduct the trial of the petitioner. Specialized Training Centre (STC), Shri Verma contends, is a part of BSF Academy, Tekanpur, whose Commandant for all purposes was Shri V.N. Rai, ADG/Director. STC being component of BSF, Shri V.N. Rai alone was competent to conduct the present SSFC trial. Reliance is placed on para 12 of the Apex Court judgment, reported in AIR 2003 SC 1416 (Union of India and others vs. B.N. Jha). 4. Shri Verma also placed reliance on Section 54 of CrPC. It is contended that as per section 54, accused is required to be examined by medical officer and a medical report needs to be obtained. In absence of subjecting the complainant/boy to said medical examination, there is no evidence against the petitioner. Lastly, it is contended that the petitioner was permitted to cross-examine the witnesses but his friend was not permitted to cross-examine the same. Thus, right of fair trial flowing from Article 21 of the Constitution is denied to the petitioner. In support of his contentions, he relied on 1989 (2) R.C.R. (Cri) 108 (Sanjiv Kumar vs. State of Punjab). He also relied on (2009) 2 SCC (Cri) 813 (Gowrishankara Swamigalu vs. State of Karnataka and another) and (2012) 7 SCC 171 (Narendra Kumar vs. State (NCT of Delhi). 5. Per Contra, Shri Chetan Kanoongo, learned counsel for the respondents supported the action against the petitioner. By taking this Court to the appellate order, the return filed in the present matter and the proceedings of SSFC, it is contended that there is no flaw in the entire action. 6. No other point is pressed by learned counsel for the parties. 7. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 8. Before dealing with the matter point-wise, I deem it proper to mention that the scope of interference under Article 226 of the Constitution in a disciplinary proceeding is well defined. No other point is pressed by learned counsel for the parties. 7. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 8. Before dealing with the matter point-wise, I deem it proper to mention that the scope of interference under Article 226 of the Constitution in a disciplinary proceeding is well defined. This is trite that the judicial review is not an appeal from a decision but a review of the matter in which decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. In a judicial review of this nature, the court is concerned to determine whether the enquiry was held by a competent officer; whether the governing rules are followed and whether the findings are based on evidence and the authority entrusted with the power to hold enquiry has jurisdiction and authority to reach a finding of fact or conclusion. The interference can be made when the findings are perverse in nature or the punishment inflicted is shockingly disproportionate. This Court need not to sit as an appellate authority to reappreciate and reweigh the evidence. 9. The point-wise findings are as under:- 10. Point No. (i): It is contended that the allegations mentioned in the charge sheet cannot become basis for initiating action against the petitioner. A bare perusal of the charge sheet shows that it has been issued under sections 24(a) and 42 of the Act. It is apt to quote the said provision, which reads as under:- “24. Certain forms of disgraceful conduct.-- Any person subject to this Act who commits any of the following offences, that is to say,-- (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind. 42. It is apt to quote the said provision, which reads as under:- “24. Certain forms of disgraceful conduct.-- Any person subject to this Act who commits any of the following offences, that is to say,-- (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind. 42. Attempt.-- Any person subject to this Act who attempts to commit any of the offences specified in sections 14 to 41 (both inclusive) and in such attempt does any act towards the commission of offence shall, by conviction by a Security Force Court, where no express provision is made by this Act for the punishment of such attempt, be liable,-- (a) If the offence attempted to be committed is punishable with death, 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 the offence attempted to be committed is punishable with imprisonment, to suffer imprisonment for a term which may extend to one half of the longest term provided for that offence or such less punishment as is in this Act mentioned. A plain reading of this provision makes it clear that an employee can be subjected to disciplinary action for disgraceful, indecent and unnatural conduct. The relevant portion of the charge sheet reads as under:- BSF ACT 1968 SECTION 24(a)/42 DISGRACEFUL CONDUCT OF AN ATTEMPT TO COMMIT AN ACT OF UNNATURAL KIND BIDR GROUND On 20-3-11 that he, at urinal near BIDR ground on 20-3-2011 at about 1800 hrs, tried to commit sodomy on Master Anish singh S/O No. 950320948 Constable Asit Kumar of Eqtn Wing, BSF Academy, Tekanpur. BSF ACT 1968 SECTION 24(a)DISGRACEFUL CONDUCT OF AN INDECENT KIND BIDR GROUND On 20-3-2011 that he, at urinal near BIDR ground on 20-3-2011 at about 1800 hrs, forced oral sex by trying to put his penis in the mouth of Master Anish singh S/O No. 950320948 Constable Asit Kumar of Eqtn Wing, BSF Academy, Tekanpur.” A simple reading of the allegations makes it clear that such incident and allegations can become subject matter of charge under section 24(a) and 42 of the Act. In other words, I am unable to hold that the allegations mentioned in the charge sheet do not fall within the ambit of the Act or it cannot be a reason to initiate the action against the petitioner. In other words, I am unable to hold that the allegations mentioned in the charge sheet do not fall within the ambit of the Act or it cannot be a reason to initiate the action against the petitioner. Thus, this contention is rejected. 11. Point No. (ii): It is alleged that the DIG, STC, BSF Tekanpur was disqualified to conduct the impugned trial and it could have been conducted by the Commandant of 35th Battalion, Meghalaya or by the Commandant, BSF Academy, Tekanpur, namely, Shri V.N. Rai. The respondents have rejected the said contention raised by the petitioner in the appeal memo. In B.N. Jha (supra) the Apex Court opined that section 2(1)(f) of the Act defines "Commandant" with reference to a unit and not Commandant as a holder of post. Thus, the litmus test is whether the DIG, STC, BSF was Commandant with reference to a unit or not. The respondents have taken a specific stand that STC is an independent unit commanded by an officer of the rank of DIG. Shri H.S. Garcha was heading the unit at the relevant time. For administrative and disciplinary purpose he exercised all the powers of a Commandant independently and was Commandant of the petitioner at the relevant time. By relying on Rule 45 of BSF Rules, it is contended by the respondents that Shri Garcha was competent to take action against the petitioner. The petitioner has not placed any material to rebut the said stand taken by the respondents. The petitioner has not shown any document to show that the STC was not an independent unit. Thus, I am unable to hold that STC was not an independent unit and, therefore, the judgment cited by petitioner in the case of B.N. Jha (supra) is of no assistance to him. Apart from this, the petitioner relied on Rule 16(5) of the BSF Rules, which reads as under:- 16. Command.-- (5) Disciplinary powers over a person subject to the Act shall be exercised by the Commandant of the battalion or unit to which such a person belongs or the officer on whom command has devolved in accordance with sub-rule (2). On the strength of this rule, it is contended that the power over a person can be exercised by the Commandant of the battalion or unit to which such a person belongs. On the strength of this rule, it is contended that the power over a person can be exercised by the Commandant of the battalion or unit to which such a person belongs. It was contended that the petitioner belongs to 35th battalion, Meghalaya and, therefore, no action could have been taken by Shri Garcha of STC Unit. In the opinion of this Court, this argument is also devoid of substance. Rule 16(6) reads as under:- “16. Command.-- (6) Where such a person is doing detachment duty, including attendance at a course of instruction the Commandant of the battalion, unit, centre or establishment with which he is doing such duty shall also have all the disciplinary powers of a Commandant.” This rule makes it clear that in addition to the powers vested with the Commandant of the main unit, the disciplinary powers are given to the Commandant of other unit, battalion or centre where the person is doing detachment duty. The detachment is defined in rule 2(d), which reads as under:- “2(d) "Detachment" includes any part of the battalion required or ordered to proceed on duty away from Headquarters. On a specific question from the Bench, Shri Akshay Verma, learned counsel for the petitioner, fairly admitted that the petitioner was on detachment duty to STC Tekanpur. On the basis of aforesaid factual backdrop, it is clear that the DIG, STC, BSF was head of the unit and was competent to take disciplinary action against the petitioner. Thus, this point is also decided against the petitioner. 12. Points No. (iii) and (iv): By placing heavy reliance on section 54 CrPC, it is contended that the victim/complainant/PW1 was not subjected to medical test. In addition to this, it is contended that as per section 87 of the Act, the Evidence Act is applicable. The petitioner has relied on the judgment of Supreme Court in Gowrishankara Swamigalu and Narendra Kumar (supra) to submit that the necessary ingredients and proof to establish sodomy were not there. In the considered opinion of this Court, learned counsel for the petitioner is unable to show any provision by which CrPC can be made applicable in the SSFC proceedings. Section 4 of CrPC makes it clear that the offence under IPC needs to be investigated, enquired into, tried and otherwise dealt with in accordance with the provisions of CrPC. In the considered opinion of this Court, learned counsel for the petitioner is unable to show any provision by which CrPC can be made applicable in the SSFC proceedings. Section 4 of CrPC makes it clear that the offence under IPC needs to be investigated, enquired into, tried and otherwise dealt with in accordance with the provisions of CrPC. Section 5 of CrPC makes it clear that no provision of the Code in absence of any specific provision to the contrary, shall affect any special or local law wherein any special power is conferred or jurisdiction is vested. Thus, I am unable to hold that CrPC or its Section 54 has any application in the matter. In absence thereto, no procedural flaw can be found on this aspect. Even if the Evidence Act is applicable, it is to be seen whether it is a case of no evidence. This also needs to be examined whether any crucial evidence has escaped notice of SSFC or any irrelevant material/evidence is taken into account by the SSFC. As per petitioner's own saying, five witnesses, namely, PW1 Master Anis Singh, PW2 Master Vishal Kumar, PW3 Constable Asit Kumar, PW4 Head Constable Bhanwar Lal Purohit and PW5 Sub Major Rakesh Kumar Sharma entered the witness box. The said witnesses have supported the prosecution story and deposed their statement against the petitioner. The petitioner was permitted to cross-examine those witnesses. The proceedings of enquiry and petitioner's own pleadings in the writ petition show that the petitioner has actually cross-examined various witnesses. The allegation against the petitioner is that he made an attempt to commit an act of unnatural kind. In view of the allegation against the petitioner, even if no medical examination was conducted, it cannot be said that it is a case of no evidence. Two minor boys entered the witness box and deposed their statement in specific. By cross-examination the statements could not be demolished. The statements of prosecution witnesses and more particularly the statement of PW1 Master Anis Singh and Master Vishal Kumar shows that there is a credible evidence against the petitioner. Thus, there is sufficient evidence to hold the petitioner as guilty. The judgment cited by the petitioner are related with a criminal trial related to the allegations of sodomy and rape. The said judgments are based on different facts and circumstances and are not arising out of any SSFC trial. Thus, there is sufficient evidence to hold the petitioner as guilty. The judgment cited by the petitioner are related with a criminal trial related to the allegations of sodomy and rape. The said judgments are based on different facts and circumstances and are not arising out of any SSFC trial. CrPC is not applicable on SSFC trial and, therefore, the said judgments are not applicable in the facts and circumstances of the present case. 13. Point No. (v): It is canvassed that permitting the petitioner to engage a friend but not permitting the friend to cross-examine the witnesses runs contrary to principles of natural justice and hits Article 21 of the Constitution. Before dealing with this aspect, it is apt to quote rule 157 of the BSF Rules, 1969, which reads as under:- “157. Friend of the accused.-- During a trial at a Summary Security Force Court an accused may take the assistance of any person, including a legal practitioner as he may consider necessary. Provided that such person shall not examine or cross-examine witnesses or address the Court. A bare perusal of this rule makes it clear that a person permitted to be engaged as assistant or friend of an accused shall not be permitted to examine or cross-examine the witness at SSFC. Thus, as per the proviso aforesaid, there is a bar for the friend/assistant to examine or cross-examine the witness or address the court. The validity of this provision is not called in question. As per this provision, no flaw can be found in the action of the respondents; more so, when the petitioner was permitted to cross-examine the witnesses and he actually cross-examined many of them. No prejudice is shown by the petitioner to this Court. This is settled in law that when validity of a provision is not under challenge, the court has to proceed by treating it as intra vires and interpret the same accordingly. See, (2000) 4 SCC 285 (Molar Mal (Dead) Through Lrs vs. Kay Iron Works (P) Ltd.). For these cumulative reasons, this point is also decided against the petitioner. 14. Point No. (vi): Last contention is that the appellate order is vitiated because the said authority has not afforded opportunity of personal hearing to the petitioner. In support of this, reliance is placed on the judgment in Madan Singh (supra) (Punjab & Haryana High Court). For these cumulative reasons, this point is also decided against the petitioner. 14. Point No. (vi): Last contention is that the appellate order is vitiated because the said authority has not afforded opportunity of personal hearing to the petitioner. In support of this, reliance is placed on the judgment in Madan Singh (supra) (Punjab & Haryana High Court). In my opinion, the curtains are finally drawn on this issue by Supreme Court in (1991) 1 SCC 654 (Union of India and others vs. Ex Constable Amrik Singh). The Apex Court while considering Section 117(2) of the Act opined that the member of BSF is entitled to file a petition but the disposal of such petition does not attract principles of natural justice. It is further held that while disposing of a petition under Section 117(2), giving of personal hearing is not necessary (Para 8). A contrary decision of Punjab & Haryana High Court on this point is reversed by the Supreme Court. 15. As analyzed above, there is no substance in the petition. The charges established against the petitioner are very grave. It cannot be said that the petitioner is subjected to any harsh/excessive punishment. Thus, I find no reason to interfere in this petition. Petition sans substance and is hereby dismissed. No costs.