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2013 DIGILAW 1692 (RAJ)

Narendra Bahadur Yadav v. The Union of India

2013-09-23

SANGEET LODHA

body2013
JUDGMENT 1. - This writ petition is directed against order dated 29.01.2013 passed by the Deputy Inspector General, STC, BSF, Jodhpur, whereby the petitioner-Inspector Narendra Bahadur Yadav has been placed under close arrest under Rule 36 of the Border Security Force Rules, 1969 (for short "the Rules") on being found guilty by the General Security Force Court (GSFC) of the charges for he was tried and sentenced to suffer rigorous imprisonment for two years and dismissal from service. The petitioner has also questioned the convening order the charge sheet and the sentence awarded by the GSFC. That apart, the directions are sought for early disposal of pre confirmation revision petition preferred by the petitioner under Sec. 117(1) of Border Security Force Act, 1968 (for short "the Act") and to release him pending disposal of the pre confirmation petition. During the pendency of the petition, the pre confirmation petition preferred by the petitioner was rejected by the Confirming Authority, Special Director General, BSF (West), Chandigarh vide order dated 24.07.2013, which is placed on record by the respondents as Annexure R/1. The application preferred by the petitioner under Sec. 130 of the Act, for suspension of the sentence also stands rejected by the Director General, BSF, vide order dated 06.09.2013, which is placed on record by the petitioner as Annexure-53. The petitioner has already preferred revision petition under Sec. 117(2) of the Act before the Central Government aggrieved by finding of GSFC, which stands confirmed by the Confirming Authority, the Special DG, BSF, which is pending consideration. 2. The respondents have raised a preliminary objection questioning the maintainability of the petition before this Court on the ground that under Sec. 117(2) of the Act, the petitioner is entitled to present a post confirmation petition to the Central Government, Director General or any Prescribed Officer superior in command to one who confirmed such finding or sentence and therefore, in view of the availability of the appropriate remedy under the relevant statute, there is no reason as to why the petitioner should be permitted to invoke the extra ordinary jurisdiction of this Court questioning the validity of the finding of guilt recorded and the sentence awarded by the GSFC. 3. 3. Learned Assistant Solicitor General (ASG) appearing for the respondents contended that the petitioner having already availed the remedy of post confirmation petition available under Sec. 117(2) of the Act, cannot maintain this petition questioning the orders passed by the GSFC and the Confirming Authority, before this Court invoking its extra ordinary jurisdiction under Article 226 of the Constitution of India. Learned ASG submitted that as a matter of fact, till the disposal of the petition preferred by the petitioner under Sec. 117(2), the writ petition preferred is pre mature. In support of the contentions, learned ASG has relied upon the decision of the Hon'ble Supreme Court in the matter of Union of India v. Bodupalli Gopalaswami, (2011) 13 SCC, 553 and decisions of this Court in the matter of V.S. Tiwari & Ors. v. Union of India (UOI) & Ors., RLW 2003(3) Raj. 1750 and Major General A.K. Lal v. Union of India (UOI) and Ors., RLW 2009 (2) Raj. 1039. Learned ASG submitted that though the petitioner has preferred a revision petition under Sec. 117(2) of the Act before Central Government but, the said revision petition is required to be heard and disposed of by the DG, BSF inasmuch as, the Confirming Authority, Special DG, is an officer inferior in rank of the DG. 4. Learned counsel appearing for the petitioner submitted that the petitioner shall pursue the remedy of revision petition already preferred before the Central Government under Sec. 117(2) of the Act but then, the petitioner's application under Sec. 130 of the Act for suspension of sentence having been rejected by the DG, BSF, pending disposal of the petition under Sec. 117(2) by the Central Government, the petitioner's sentence of rigorous imprisonment for two years imposed upon him by the GSFC, deserves to be suspended pending disposal of the revision petition by the Central Government. 5. Learned counsel submitted that the trial of the petitioner was conducted by the GSFC in gross violation of the principles of natural justice and the provisions of the Act and the Rules incorporated to ensure the fair trial. Learned counsel submitted that the petitioner was charged for exacting money from the Recruits of 'D' Coy, Batch No. 164 through the Recruit, Constable Raghuraj Singh, on the pretext of construction of boundary wall in his village without any basis. Learned counsel submitted that the petitioner was charged for exacting money from the Recruits of 'D' Coy, Batch No. 164 through the Recruit, Constable Raghuraj Singh, on the pretext of construction of boundary wall in his village without any basis. Learned counsel submitted that during the trial the petitioner was not even permitted to cross examine the witnesses who deposed against him. Learned counsel submitted that no recovery was effected from the petitioner and there was no documentary evidence substantiating the allegations levelled. Drawing the attention of this Court to the proceedings conducted, learned counsel submitted that the procedure prescribed under Rule 119 of the Rules, was not followed. Learned counsel would submit that as per Rule 101 of the Rules, the GSFC before deliberating on sentence is required to take into consideration inter alia the general character, service record and recognised acts of gallantry or distinguished conduct of the accused but, in the instant case, the unblemished outstanding service record of the petitioner and the gallantry awards to his credit have altogether been ignored by the GSFC. Drawing the attention of the Court to the proceedings, learned counsel submitted that APARs of the petitioner, which were outstanding were not even placed before the GSFC during the deliberation on the sentence and therefore, the punishment awarded in gross violation of the provisions of Rule 101 and looking to the nature of accusation, is highly excessive. Learned counsel submitted that during the trial, the petitioner was placed under open arrest under Rule 38 w.e.f. 21.07.2012 and after the trial, on the sentence being awarded, he was placed under close arrest under Rule 36 of the Rules with immediate effect and thus, by now the petitioner has already suffered the sentence of 14 months. Learned counsel submitted that the petitioner had submitted the pre confirmation petition on 31.01.2013 through proper channel, however, despite representation being made, the same was not decided for a period of about five months and now, the same has been decided during the pendency of this petition vide order dated 24.07.2013. Learned counsel submitted that the petitioner had submitted the pre confirmation petition on 31.01.2013 through proper channel, however, despite representation being made, the same was not decided for a period of about five months and now, the same has been decided during the pendency of this petition vide order dated 24.07.2013. Learned counsel submitted that the disposal of post confirmation petition preferred by the petitioner on 14.08.2013 is likely to take time and therefore, if the petitioner is not released pending disposal of post confirmation petition, the entire purpose of filing the petition shall stand frustrated if by the time, the petition is decided the petitioner services the entire term of the sentence. Learned counsel submitted that since the record of the proceedings was not made available to the petitioner and therefore, he has not been able to make his submissions in details while filing the pre confirmation petition as also the post confirmation petition and therefore, the petitioner would like to make additional submissions as well before the Central Government. 6. Learned counsel submitted that the pre confirmation petition preferred by the petitioner before the DG, stands rejected by the Special DG and the petitioner's application under Sec. 130 for suspension of sentence stands rejected by the DG, holding the grounds raised by the petitioner to be devoid of any merit and therefore, the petitioner is not likely to get justice if the post confirmation petition is decided by the DG. Learned counsel submitted that as a matter of fact, in terms of provisions of Section 117(2), the petitioner is entitled to prefer the revision petition before any Prescribed Officer superior in command to the one who confirmed finding or sentence as also to the Central Government and therefore, even otherwise, the revision petition preferred by the petitioner before the Central Government is competent. 7. Learned ASG would submit that as per provisions of Section 117(2), the revision petition could be filed before the Central Government only if the order confirming the finding of guilt and sentence is passed by the DG, but in the instant case, since the confirmation order was passed by the Special DG, who is lower in the rank than DG, therefore, the revision petition was required to be presented before the DG and not before the Central Government. Regarding the suspension of sentence, learned ASG submitted that the petitioner has been convicted for an offence under Sec. 31(b) of the Act, which is punishable by sentence of imprisonment for a term which may extend to ten years and therefore, the punishment of rigorous imprisonment for two years awarded to the petitioner cannot be said to be excessive. Learned counsel would submit that obviously taking the mitigating circumstances in consideration, the lesser punishment has been awarded to the petitioner by the GSFC. Learned counsel submitted that merely on account of pendency of the petition, the petitioner cannot claim suspension of sentence as a matter of right. Learned counsel submitted that the revision petition preferred by the petitioner shall be disposed of expeditiously and no ground for suspension of sentence is made out. 8. I have considered the rival submissions and perused the material on record. 9. It is well settled that the proceedings and decision of Security Force Court cannot be interfered with unless this Court finds that Security Force Court acted without jurisdiction or exceeded its jurisdiction on has acted perversely and arbitrarily. It is also well settled that jurisdiction of the High Court under Article 226 of the Constitution of India is couched in wide terms and exercise thereof is not circumscribed by any restrictions except the territorial restrictions expressly provided for. But then, the remedy provided under Article 226 of the Constitution of India is discretionary in nature and normally the Court would refuse to exercise the jurisdiction, where effective and efficacious remedy is available to the person aggrieved under the relevant statute. 10. Indisputably, the post confirmation petition preferred by the petitioner against the order of GSFC under Sec. 117(2) of the Act during the pendency of the writ petition before this Court, is pending consideration before the Central Government. 11. 10. Indisputably, the post confirmation petition preferred by the petitioner against the order of GSFC under Sec. 117(2) of the Act during the pendency of the writ petition before this Court, is pending consideration before the Central Government. 11. Having considered the rival submissions, this Court is of the considered opinion that the present writ petition does not suggest any special feature so as to permit the petitioner to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India against the order impugned passed by the GSFC convicting him for the offence under Sec. 31(b) of the Act and awarding the punishment of two years rigorous imprisonment and dismissal from service, bypassing the statutory remedy of revision petition under Sec. 117(2) of the Act already availed by the petitioner. In this view of the matter, this Court is not inclined to entertain the challenge of the petitioner to the legality of orders impugned on merits at this stage. 12. Coming to the suspension of sentence, it is to be noticed that the petitioner was placed under open arrest under Rule 38 of the Rules w.e.f. 21.07.2012 and thereafter, on being convicted by GSFC, the petitioner was placed under close arrest under Rule 36 of the Rules with immediate effect and he is behind the bars till this date and thus, he has already served substantial sentence of 14 months out of the sentence of 2 years. It is a matter of record that the petitioner had filed the pre confirmation petition under Sec. 117(1) before the DG, BSF on 31.03.2013, which remained pending with him for about four months and thereafter, it was transferred for disposal to the Special DG. Be that as it may, the disposal of the pre confirmation petition took about five months. The petitioner has already preferred a revision petition under Sec. 117(2) of the Act before the Central Government and disposal thereof is likely to take some time. On the facts and in the circumstances of the case, this Court does not consider it appropriate to express opinion on merits of issues raised at this stage but, the fact remains that the petitioner certainly has arguable points which need to be considered by the revisional authority. On the facts and in the circumstances of the case, this Court does not consider it appropriate to express opinion on merits of issues raised at this stage but, the fact remains that the petitioner certainly has arguable points which need to be considered by the revisional authority. The petitioner is justified in contending that he has already served the substantial part of the sentence and if pending disposal of the post confirmation petition, he is not released, the entire purpose of filing the post confirmation petition shall stand frustrated. 13. Thus, taking into consideration, the nature of accusation, the record of trial produced for perusal of this Court and the past record of the petitioner, this Court is of the considered opinion that the petitioner having already undergone the substantial term of the sentence awarded, in the interest of justice, it will be appropriate that his substantive sentence of imprisonment is suspended pending disposal of the revision petition preferred by him before the Central Government. 14. A dispute has been raised by the parties with regard to the maintainability of the revision petition preferred by the petitioner straight away before the Central Government instead of before the DG. It is pertinent to note that as per provisions of Section 117(2) of the Act the person aggrieved by finding on sentence of any Security Force Court which has been confirmed is entitled to present the petition to the Central Government, the Director General or any Prescribed Officer superior in command to one who confirmed such finding or sentence. It may be arguable point that whether the revision petition can be preferred by the aggrieved person before either of the three authorities specified or the same could be preferred only before the authority superior in command who confirmed such finding or sentence, however, this Court is not inclined to decide the question in the instant case inasmuch as, the pre confirmation petition preferred by the petitioner before the DG stands rejected by the Special DG and while rejecting the petition preferred by the petitioner under Sec. 130, the DG has also made observations regarding the correctness of the finding of guilt recorded against the petitioner by GSFC. The DG has observed that the petitioner is found guilty of the offence involving moral turpitude and the grounds raised by the petitioner were found to be devoid of any merit. The DG has observed that the petitioner is found guilty of the offence involving moral turpitude and the grounds raised by the petitioner were found to be devoid of any merit. In this view of the matter, in the interest of justice, it will be appropriate that the revision petition preferred by the petitioner is decided by the Central Government. In the result, the writ petition is partly allowed. The order passed by the GSFC sentencing the petitioner for rigorous imprisonment for a period of two years is directed to be suspended pending disposal of the revision petition preferred by the petitioner under Sec. 117(2) before the Central Government. The petitioner-Inspector Narendra Bahadur Yadav may be released forthwith on his furnishing personal bond in the sum of Rs. 20,000/- and one surety of the like amount to the satisfaction of Superintendent of the Jail, where he is presently lodged. The revision petition shall be decided by the Central Government expeditiously, uninfluenced by any observation made by this Court on merits in this order incidentally. The petitioner shall be at liberty to submit the additional submissions before the Central Government within a period of two weeks from the date of receipt of certified copy of this order. Needless to say that the petitioner shall be at liberty to avail the appropriate remedy available under the law, if aggrieved by the order to be passed by the Central Government on the revision petition preferred as aforesaid. No order as to costs.Petition Partly Allowed. *******