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2016 DIGILAW 386 (CAL)

Deepender Singh Shekhawat v. Union of India

2016-04-28

ARIJIT BANERJEE

body2016
JUDGMENT : Arijit Banerjee, J. 1. In the present writ application the petitioner prays for quashing the entire proceedings of the General Security Force Court in respect of Regd. No. 010059166 Ct Deepender Singh Shekhawat, 87 BN BSF Aradhpur, Malda and all orders passed therein, including the order dated 20 June, 2011 whereby the petitioner was found guilty and convicted of an offence punishable under Section 376(1) of the IPC, 1960 and sentenced to suffer seven years imprisonment and was also dismissed from service. 2. The material facts of the case are as follows. 3. At all material times the petitioner, who is presently about 34 years old, was in service as a constable of the Border Security Force with Regiment No. 010059166 and was attached to the 87 BN Battalion, posted at Aradhpur, Malda, West Bengal. The duty of the petitioner was that of a dog handler. 4. On 2 April, 2010 the petitioner was on duty at his concerned station i.e. Malda, West Bengal. 5. On 3 April, 2010 one Dhari Chand Ram, barber, 200 BN BSF filed an application before his superior officer alleging that on 2 April, 2010 between 9.00 hours to 10.00 hours the petitioner had committed rape on his daughter Miss Baby Kumari aged below 12 years at HQ 87 BN BSF, Aradhpur, Malda. Thereupon, the Commandant of 87 BN BSF and other officers and their wives visited the residence of Dhari Chand Ram and inquired about the matter from the victim. The petitioner contends that thereafter Dhari Chand Ram (in short 'the complainant') was warned by the said officers not to level false accusation against the petitioner. 6. On 5 April, 2010 the complainant took his daughter to the Sector Hospital, BSF, Malda for medical examination and on the same day he lodged a FIR against the petitioner with the Old Malda Police Station, alleging rape on his daughter. On 13 May, 2011, a charge-sheet was issued against the petitioner by the Second in Command, Designate Commandant, 87 BN BSF and the same was directed to be tried by the General Security Force Court by the Inspector General, HQ, Malda Frontier BSF, vide his order dated 26 May, 2011. A General Security Force Court was convened under the Border Security Force Act (in short 'BSF Act') which started the proceedings on 6 June, 2011 by framing charges against the petitioner. A General Security Force Court was convened under the Border Security Force Act (in short 'BSF Act') which started the proceedings on 6 June, 2011 by framing charges against the petitioner. The charge framed against the petitioner was commission of a Civil Offence i.e. rape on a woman of under 12 years of age punishable under Section 376(2)(f) of the IPC. The petitioner pleaded 'not guilty' and the proceedings continued against him on a day to day basis between 7 June, 2011 and 20 June, 2011. 7. On 20 June, 2011 the General Security Force Court (in short 'The GSF Court') pronounced judgment convicting the petitioner under Section 376(1) of the IPC. On the same date he was sentenced to suffer seven years imprisonment and to be dismissed from service. On 29 July, 2011 the finding and the sentence of the GSF Court were confirmed by the Confirming Officer being the Special Director General (East), BSF, Calcutta who also directed that the sentence of imprisonment shall be carried out in civil prison. 8. The petitioner filed a review petition against the order of the GSF Court before the Director General, Border Security Force on 16 September, 2011. The review petition was filed primarily on six grounds:- (i) The GSF Court arbitrarily altered the charge against the petitioner at the time of pronouncement of finding. (ii) The prosecution has not been able to prove the case beyond reasonable doubt. (iii) The answer given by the prosecution witnesses were not properly recorded. The GSF Court asked leading questions to the prosecution witnesses and the court did not pay heed to the petitioner's objections in this regard. (iv) The court discarded the statement of the defence witnesses to the effect that the petitioner was engaged in duty under the direction of his superior Ms. Gill at the time of occurrence of the alleged incident. (v) The mother of the victim who is an important witness, was withheld by the prosecution. (vi) None of the doctors who examined the victim found any injury or laceration or bruise on the body of the victim and also did not find any trace of bleeding. 9. By an order dated 6 January, 2012 the Director General, BSF, rejected the said review petition. 10. The petitioner was taken in custody on 20 June, 2011 and since then he has been serving the sentence in the Malda Correctional Home. 9. By an order dated 6 January, 2012 the Director General, BSF, rejected the said review petition. 10. The petitioner was taken in custody on 20 June, 2011 and since then he has been serving the sentence in the Malda Correctional Home. The petitioner's contention:- 11. Appearing on behalf of the petitioner, Mr. Rajdeep Majumdar, Ld. Counsel, urged two points before this court. Firstly, he submitted that the GSF Court had no jurisdiction to entertain or try the matter. Secondly, he contended that no hearing was given by the Appellate Authority under Section 117 of the BSF Act and therefore the order of the Appellate Authority was vitiated for breach of the principles of natural justice. 12. As regards the first point, Ld. Counsel referred to Section 80 of the BSF Act which is set out hereunder:- "S. 80: Choice between criminal court and Security Force Court.- When a Criminal Court and a Security Force Court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director-General, or the Inspector-General or the Deputy Inspector General within those command the accused person is serving or such other officer as may be prescribed, to decide before which court the proceedings shall be instituted, and, if that officer decided that they shall be instituted before a Security Force Court, to direct that the accused person shall be detained in Force Custody." Ld. Counsel submitted that under Section 80 of the BSF Act, the Director General or the Inspector General or the Deputy Inspector General is empowered to decide whether the alleged offence will be tried before a Criminal Court or a Security Force Court but such decision must be supported by reasons. In the instant case, the Inspector General vide order dated 26 May, 2011 ordered the alleged offence to be tried before the GSF Court but no reason was given as to why the GSF Court was chosen and not the Criminal Court. This, according to Ld. Counsel, goes to the root of the matter and vitiates the entire proceeding. 13. In this connection he relied on a decision of the Hon'ble Supreme Court in the case of State of Jammu & Kashmir vs. Lakhwinder Kumar & Ors. (Criminal Appeal No. 624 of 2013, Special Leave Petition (CRL) No. 5910 of 2012) wherein at paragraph 6 of the judgment it was observed as follows:- "6. 13. In this connection he relied on a decision of the Hon'ble Supreme Court in the case of State of Jammu & Kashmir vs. Lakhwinder Kumar & Ors. (Criminal Appeal No. 624 of 2013, Special Leave Petition (CRL) No. 5910 of 2012) wherein at paragraph 6 of the judgment it was observed as follows:- "6. That the outcome of the trial of the accused persons by Border Security Force Court of the result of effectual proceedings instituted or ordered to be taken against them shall be intimated as per Rules 7 of the J & K Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983. The Commanding Officer, thus, has exercised his power under Section 80 of the Act and excepting to say that the said power has been exercised in his discretion, there is not even a whisper as to why said discretion has been exercised for trial of the accused persons by a Security Force Court. The Commanding Officer has nowhere stated that the trial of the accused by Security Force Court is necessary in the interest of discipline of the Force. Once a statutory guideline has been issued for giving effect to the provisions of the Act, in our opinion, the exercise of discretion without adherence to those guidelines shall render the decision vulnerable. In our opinion, the Commanding Officer has exercised his power ignorant of the restriction placed on him under the Rules. Having found that the Commanding Officers decision is illegal, the order passed by the Learned Chief Judicial Magistrate as affirmed by the High Court based on that cannot be allowed to stand." 14. The next point urged by Ld. Counsel was that the Appellate Authority under Section 117 of the BSF Act did not provide the petitioner with an opportunity of hearing before rejecting the petition filed assailing the order of the GSF Court. According to him, the principles of natural justice required that such a hearing be given. He submitted that although Section 117 does not prescribe that a hearing should be given to the petitioner, such a requirement should be read into the said Section, since the order passed thereunder has serious civil consequence for the petitioner. In this connection he relied on the following decisions of the Hon'ble Supreme Court:- (i) Swadeshi Cotton Mills vs. Union of India, (1981) 1 SCC 664 . (ii) Mohinder Singh Gill & Anr. In this connection he relied on the following decisions of the Hon'ble Supreme Court:- (i) Swadeshi Cotton Mills vs. Union of India, (1981) 1 SCC 664 . (ii) Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors., AIR 1978 SC 851 . (iii) Ashwin S. Mehta & Anr. vs. Union of India & Ors., (2012) 1 SCC 83 . 15. Mr. Majumdar further submitted that if this court is satisfied with the petitioner's case, then the order of the GSF Court should be quashed and the petitioner should be acquitted. This court should not transfer the case to the Magistrates' Court to be tried afresh by the Criminal Court as the same would amount to exposing the petitioner to double jeopardy. A person cannot be tried twice for the same offence. The petitioner has already served five years out of the seven years' sentence and it would be in the interest of justice to acquit the petitioner once and for all in the event this court accepts the petitioner's contentions. In this connection Ld. Counsel relied on a decision of the Hon'ble Supreme Court in the case of State of Rajasthan vs. Hat Singh & Ors., AIR 2003 SC 791 . Contention of the respondents:- 16. Appearing for the respondents, Mr. D.N. Ray, Ld. Counsel submitted that the petitioner went through the trial before the GSF Court without raising any objection as regards the jurisdiction of the GSF Court to hear the matter. In fact, he categorically recorded his statement before the GSF Court that he has no objection to being tried by that Court for the offence that he was alleged to have committed. Having so acquiesced in the proceeding, the petitioner should not be permitted to contend that the GSF Court had no jurisdiction to entertain, try and dispose of the matter. 17. Ld. Counsel submitted that the statutory petition of the petitioner submitted under Section 117(1) of the BSF Act read with Rule 167(1) of the BSF Rules was rejected by the Special Director General (East) Border Security Force, Calcutta by an order dated 28 July, 2011. 18. The petition of the petitioner under Section 117(2) of the BSD Act was considered by the Director General, BSF and was rejected by an order dated 6 January, 2012. 19. Ld. 18. The petition of the petitioner under Section 117(2) of the BSD Act was considered by the Director General, BSF and was rejected by an order dated 6 January, 2012. 19. Ld. Counsel submitted that at no stage, the petitioner contended that the GSF Court did not have jurisdiction in the matter and such contention cannot be permitted to be urged for the first time in the present writ application. 20. In this connection, Ld. Counsel relied on a decision of the Hon'ble Supreme Court in the case of Joginder Singh vs. State of Himachal Pradesh, AIR 1971 SC 500 . 21. As regards the point of breach of the principles of natural justice, Ld. Counsel submitted that no personal hearing is required to be given to the petitioner while disposing of a petition under Section 117(2) of the BSF Act. In this connection Ld. Counsel relied on a decision of the Hon'ble Supreme Court in the case of Union of India & Anr. vs. Ex Constable Amrik Singh, AIR 1991 SC 564 . 22. On the basis of the aforesaid submission, Ld. Counsel prayed for dismissal of the writ petition. Court's View:- 23. Taking the issue of jurisdiction first, I have already noted that Section 80 of the BSF Act empowers the Director General or the Inspector General or the Deputy Inspector General within whose command the accused person is serving or such officer as may be prescribed, to decide whether the proceeding shall be instituted before a Criminal Court or a Security Force Court in the cases where both the Courts have jurisdiction in respect of the offence. It is a discretionary power and like any discretionary power vested in any Authority, the same must be exercised reasonably and on the basis of relevant considerations, shorn of arbitrariness. In this connection Rule 41 of the Border Security Force Rules, 1969 is relevant and the same is set out hereunder:- "R.41. It is a discretionary power and like any discretionary power vested in any Authority, the same must be exercised reasonably and on the basis of relevant considerations, shorn of arbitrariness. In this connection Rule 41 of the Border Security Force Rules, 1969 is relevant and the same is set out hereunder:- "R.41. Trial of cases either by Security Force Court or Criminal Court.- (1) Where an offence is triable both by a criminal court and a Security Force Court, an officer referred to in Section 80 may,- (i) (a) where the offence is committed by the accused in the course of the performance of his duty as a member of the Force, or (b) where the offence is committed in relation to property belonging to the Government or the Force or a person subject to the Act, or (c) where the offence is committed against a person subject to the Act, direct that any person subject to the Act, who is alleged to have committed such an offence, be tried by a court; and (ii) in any other case, decide whether or not it would be necessary in the interests of discipline to claim for trial by a court any person subject to the Act who is alleged to have committed such an offence. (2) In taking a decision to claim an offender for trial by a court, and officer referred to in section 80 may take into account all or any of the following factors, namely:-(a) the offender is on active duty or has been warned for active duty and it is felt that he is trying to avoid such duty; (b) the offender is a young person undergoing training and the offence is not a serious one and the trial of the offender by a criminal court would materially affect his training; (c) the offender can, in view of the nature of the case, be dealt with summarily under the Act." 24. The BSF Rules have been framed by the Central Government in exercise of power under Section 141 of the BSF Act, 1968. The said Rules are statutory Rules and have the force of law. The said Rules stipulate the factors which an officer referred to in Section 80 of the BSF Act is required to consider in taking a decision as regards trial of an accused person by a Security Force Court. 25. The said Rules are statutory Rules and have the force of law. The said Rules stipulate the factors which an officer referred to in Section 80 of the BSF Act is required to consider in taking a decision as regards trial of an accused person by a Security Force Court. 25. Section 47 of the BSF Act is also relevant for the present purpose. The said Section provides as follows:- "S.47. Civil offences not triable by a Security Force Court.-A person subject to this Act who commits an offence of murder or of culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Security Force Court, unless he commits any of the said offences,- (a) While on active duty; or (b) At any place outside India; or (c) At any place specified by the Central Government by notification in this behalf." 26. Thus, Section 47 of the BSF Act provides that if a person subject to the said Act commits an offence of rape in relation to a person not subject to the said Act, he may be tried by a Security Force Court provided he committed such alleged offence while on active duty. 'Active Duty' has been defined in Section 2(1)(a) of the BSF Act which is as follows:- "S. 2(1)(a). 'active duty', in relation to a person subject to this Act, means any duty as a member of the Force during the period in which such person is attached to, or forms part of, a unit of the Force- (i) Which is engaged in operations against an enemy, or (ii) Which is operating at a picket or engaged on patrol or other guard duty along the borders of India, And includes duty by such person during any period declared by the Central Government by notification in the Official Gazette as a period of active duty with reference to any area in which any person or class of persons subject to this Act may be serving;" 27. It is not in dispute that at the relevant point of commission of the offence the petitioner was not attached to or formed part of a unit of the force which was engaged in operations against an enemy or which was operating at a picket or engaged on patrol or other guard duty along the borders of India. However, the Ld. Counsel for the respondents produced a notification dated 8 August, 2007 of the Ministry of Home Affairs which is to the following effect:- "S.O. 1473(E). - In pursuance of the provisions of clause (a) of sub-section (1) of Section 2 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby declares the duty of every person referred to the said clause (a) serving in the States/Union Territories mentioned below for the period with effect from the 1st July, 2007 to 30th June, 2010 as active duty, namely........... 1.................................... 35. West Bengal" 28. Ld. Counsel for the respondents filed before this Court another notification dated 29 July, 2010 which is to the following effect:- "S.O. 1877(E). - In pursuance of the provisions of clause (a) of sub-section (1) of Section 2 of the Border Security Force Act, 1968 (47 of 1968), the Central Government hereby declares the duty of every person referred to the said clause (a) serving in the States/Union Territories mentioned below for the period with effect from the 1st July, 2010 till further orders as active duty for the purposes of the said Act, namely........... 1.................................... 35. West Bengal" 29. The effect of the aforesaid notifications is that with effect from 1 July, 2007 every person referred to in Section 2(1)(a) of the BSF Act serving in the States/Union Territories including the State of West Bengal shall be deemed to be on active duty. Thus, on 10 April, 2010 when the petitioner is alleged to have committed the offence of rape, he must be deemed to have been on active duty. Hence, under Section 47 of the BSF Act, the Security Force Court had jurisdiction to try the petitioner. 30. Since both the Criminal Court and the Security Force Court had jurisdiction to try the petitioner for the offence of rape, under Section 80 of the BSF Act, the officers mentioned therein had the discretion to decide before which Court the proceedings shall be instituted. 30. Since both the Criminal Court and the Security Force Court had jurisdiction to try the petitioner for the offence of rape, under Section 80 of the BSF Act, the officers mentioned therein had the discretion to decide before which Court the proceedings shall be instituted. The concerned Inspector General vide his order dated 26 May, 2011 directed the petitioner to be tried by the Security Force Court. The petitioner challenges the said decision of the Inspector General contending such decision was taken without taking into consideration Rule 41 of the BSF Rules, 1969 and the factors mentioned therein. It is contended on his behalf that by reason of the aforesaid, the order of the Inspector General suffered from jurisdictional error and as such the Security Force Court lacked jurisdiction to try the petitioner which rendered the entire proceeding before that Court and the conviction and punishment that the proceeding culminated in, void and non-est in the eye of law. In this connection the petitioner's Ld. Counsel placed strong reliance in the case of State of Jammu and Kashmir vs. Lakhwinder Kumar (supra). 31. In the case of Lakhwinder Kumar, a constable of the Border Security Force, was alleged to have opened fire on the public indiscriminately causing death to a teenager. This resulted in registration of a FIR. On completion of investigation, the police submitted charge sheet accusing him and another person of offence under Sections 302, 109 and 201 of the Penal Code that is in force in Jammu & Kashmir, before the Chief Judicial Magistrate, Srinagar. An application was filed on behalf of the BSF seeking time to exercise option for trial of the accused by Security Force Court, by the Dy. Inspector General, inter alia, stating that in exercise of his discretion under Section 80 of the BSF Act he had decided to institute proceeding against the accused before the Security Force Court. The Chief Judicial Magistrate allowed the application and handed over the accused together with the charge-sheet and other materials collected by the investigating agency for trying the accused by the Security Force Court. Being aggrieved, the State of Jammu and Kashmir and the uncle of the victim filed revisional applications before the High Court which were dismissed. Against the said order, the State of Jammu and Kashmir and the uncle of the victim preferred Special Leave Petitions to the Hon'ble Supreme Court. Being aggrieved, the State of Jammu and Kashmir and the uncle of the victim filed revisional applications before the High Court which were dismissed. Against the said order, the State of Jammu and Kashmir and the uncle of the victim preferred Special Leave Petitions to the Hon'ble Supreme Court. The Hon'ble Supreme Court referred to Section 80 of the BSF Act and Rule 41 of the BSF Rules and observed that Rule 41(1)(ii) authorises the Officer competent to exercise its power under Section 80 of the BSF Act as to whether or not it would be necessary in the interest of discipline to claim the accused for trial by a Security Force Court and Rule 41(2) enumerates the factors which the officer competent under Section 80 of the Act is to take into account for taking a decision for trial of an accused by a Security Force Court. The Hon'ble Supreme Court came to a conclusion that none of the Clauses of Rule 41(1)(i) and Rule 41(2) apply to the facts of that case. The Hon'ble Supreme Court held that once a statutory guideline has been issued for giving effect to the provisions of the BSF Act, the exercise of discretion without adherence to those guidelines would render the decision vulnerable. The Hon'ble Supreme Court held that the Commanding Officer had exercised his power ignorant of the restrictions placed on him under the Rules. As such, the decision was illegal and the order passed by the Ld. Chief Judicial Magistrate as affirmed by the Hon'ble High Court could not be allowed to stand. 32. As I read the aforesaid decision, the Hon'ble Supreme Court set aside the order of the Commanding Officer on the ground that the same was passed without taking into account the factors enumerated in Rule 41 of the BSF Rules. The BSF Rules have been framed under Section 141 of the BSF Act and have the force of statute. In exercising discretion under Section 80 of the BSF Act the concerned officer is obliged to consider the factors mentioned in Rule 41. In other words, the officer is to be guided by the factors mentioned in Rule 41 in taking a decision under Section 80 of the Act. In exercising discretion under Section 80 of the BSF Act the concerned officer is obliged to consider the factors mentioned in Rule 41. In other words, the officer is to be guided by the factors mentioned in Rule 41 in taking a decision under Section 80 of the Act. Since in Lakhwinder Kumar's case, the commanding officer ignored Rule 41, the Hon'ble Supreme Court held his decision to be illegal and remanded the matter back with liberty to the Director General of BSF to re-visit the entire issue in accordance with law. All this happened before the trial of the accused started. Hence, there was no occasion for the Hon'ble Supreme Court to make any pronouncement on whether or not the Security Force Court would have had jurisdiction in the matter if the trial had started before it. 33. In my opinion, even assuming that in the facts of the instant case, the Inspector General erred in not paying heed to the factors enumerated in Rule 41 of the BSF Rules, the order passed by him directing trial of the petitioner by the Security Force Court would at worst be a wrong order resulting from an erroneous exercise of discretion. In my view, trial of the petitioner by the Security Force Court pursuant to an erroneous decision under Section 80 of the Act, would not render the trial without jurisdiction. It is not the decision of the concerned officer under Section 80 of the Act which vests the Security Force Court with jurisdiction to try an accused. Hence, even an erroneous decision under Section 80 of the Act would not denude the Security Force Court of jurisdiction. It is not a case of inherent lack of jurisdiction on the part of the Security Force Court. In the facts of the case, both the Criminal Court and the Security Force Court had the jurisdiction to try the petitioner. It was the discretion of the Officers mentioned in Section 80 of the Act as regards which Court should try the petitioner. Even if the exercise of such discretionary power by the Inspector General was wrongful, the proceedings that followed before the Security Force Court cannot be said to be void or non-est in the eye of law since otherwise the Security Force Court had jurisdiction to try the petitioner. Even if the exercise of such discretionary power by the Inspector General was wrongful, the proceedings that followed before the Security Force Court cannot be said to be void or non-est in the eye of law since otherwise the Security Force Court had jurisdiction to try the petitioner. That jurisdiction was vested in the Security Force Court by the BSF Act and not by the decision of the Inspector General. 34. It is well established proposition of law that there is a world of difference between a decision taken by an Authority by erroneous exercise of power or jurisdiction that it clearly has and a decision taken by an Authority by exercising a power or jurisdiction which it does not have. While in the former case the decision would be wrong but it would not be non-est in the eye of law and would have full effect till it is challenged at the right time before the appropriate Appellate forum and set aside. It would be a case of commission of an error within jurisdiction. In the later case, it would be a jurisdictional error and the decision would be void ab initio, as it would be a decision dehors the jurisdiction of the deciding Authority. It would have no existence in the eye of law from the very inception and all acts done on the basis of such a decision will be invalid. In the facts of the instant case, the decision of the concerned Inspector General, would at worst be the result of an error committed within his jurisdiction. The petitioner could have challenged such decision in an appropriate proceeding. He did not do so. On the contrary, he voluntarily participated in the proceeding before the Special Force Court after recording his statement that he had no objection to the trial being conducted by the said Court. Hence the decision of the Inspector General or the trial held by the Special Force Court pursuant to such decision, cannot be said to be without jurisdiction. 35. I also cannot lose sight of the fact that the petitioner in unequivocal terms recorded his concurrence in being tried by the Security Force Court. Having participated in the proceeding all through out, in my opinion, after suffering conviction of imprisonment, he cannot be permitted to challenge the jurisdiction of the Security Force Court. Ld. 35. I also cannot lose sight of the fact that the petitioner in unequivocal terms recorded his concurrence in being tried by the Security Force Court. Having participated in the proceeding all through out, in my opinion, after suffering conviction of imprisonment, he cannot be permitted to challenge the jurisdiction of the Security Force Court. Ld. Counsel for the petitioner argued that a point of law can be urged at any stage and particularly a proceeding and the resultant order can always be challenged on the ground of lack of jurisdiction even if the petitioner acquiesced in such proceedings being conducted. I would probably have accepted such contention of the Ld. Counsel if the case was one lack of inherent jurisdiction. However, as I have expressed my view above, this is not such a case. 36. Hence, the issue of jurisdiction is decided against the petitioner. The contention of the petitioner that the Security Force Court did not have jurisdiction to try his case is rejected. 37. The other point urged by the Ld. Counsel for the petitioner is that the principles of natural justice were breached since the Appellate Authority did not give a hearing to the petitioner before rejecting his petition under Section 117(2) of the BSF Act. Although Section 117(2) of the Act does not envisage that the petitioner is to be given a hearing, according to Ld. Counsel before any order is passed by an Authority which has serious adverse civil consequences for a person, that person must be given an opportunity of hearing. He relied on three decisions in this regard. In Swadeshi Cotton Mills vs. Union of India (supra), the Hon'ble Apex Court at paragraph 44 of the judgment observed as follows:- "44. In short, the general principle-as distinguished from an absolute rule of uniform application-seems to be that where a statute does not in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shown of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need or utmost promptitude. In short, this rule of fair play "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands". The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, to recall the words of Bhagvati, J., the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." In Mohinder Singh Gill (supra), the Hon'ble Supreme Court referred to various earlier decisions including decisions of English Courts and held that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. No doctrinaire approach is desirable but the court must be anxious to salvage the cardinal rule to the extent permissible in a given case. In my understanding the Hon'ble Supreme Court laid down that there cannot be any strait jacket formula for complying with the principles of natural justice and the court or any other Adjudicating Authority has to take a call depending on the facts and circumstances as well as exigency of each case. In the case of Ashwin S. Mehta (supra), the Hon'ble Supreme Court at paragraphs 40 and 42 of the judgment observed as follows:- "40. It is true that rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or Tribunal is administrative or quasi-judicial. The concept of "natural justice" implies a duty to act fairly i.e. fair play in action. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or Tribunal is administrative or quasi-judicial. The concept of "natural justice" implies a duty to act fairly i.e. fair play in action. As observed in A.K. Kraipak Vs. Union of India, the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. 42. It is thus, trite that requirement of giving reasonable opportunity of being heard before an order is made by an administrative, quasi-judicial or judicial authority, particularly when such an order entails adverse civil consequences, which would include infraction of property, personal rights and material deprivation for the party affected, cannot be sacrificed at the alter of administrative exigency or celerity. Undoubtedly, there can be exceptions to the said doctrine and as aforesaid the extent and its application cannot be put in a strait-jacket formula. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred; the purpose for which the power is conferred and the final effect of the exercise of that power on the rights of the person affected." 38. The aforesaid decisions of the Hon'ble Apex Court contained general observations on the importance of complying with the principles of natural justice in a judicial or quasi-judicial proceeding. The aforesaid decisions also contemplated exceptional situations where the principles of natural justice can be dispensed with. Ld. Counsel for the respondents relied on a case of Ex-Constable Amrik Singh (supra). In that case the Hon'ble Supreme Court observed that the principles of natural justice and audi alteram partem are part of Art. 14 of the Constitution and there are any number of decisions rendered by the Hon'ble Apex Court regarding the scope of the doctrine. The Hon'ble Supreme Court referred to its decision in the case of Maneka Gandhi, reported in (1978) 2 SCR 621 , wherein it was observed that audi alteram partem rule may be excluded if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or if the urgency of the situation so demands. However, it must be remembered that this is a rule of vital importance in the field of administrative law and must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The Hon'ble Supreme Court referred to a number of its earlier decisions and held that in cases of special enactments like Army Act, all the principle of natural justice cannot be imported and the same ratio applies to a petition under Section 117(2) of the BSF Act. The Hon'ble Supreme Court referred to Rules 167 to 169 of the BSF Rules which deal with petitions filed under Sections 117 of the BSF Act, which also do not indicate that a hearing has to be given before dismissal of a petition under Section 117(2). The Hon'ble Supreme Court finally held that under Section 117(2) an aggrieved person is only entitled to file a petition but the disposal of such a petition does not attract the principles of natural justice. A petition under Section 117(2) is only a post-confirmation petition and the authority which disposed of the same is not a court and every order passed administratively cannot be subjected to the rigours of the principles of natural justice. 39. In view of the aforesaid, decision of the Hon'ble Supreme Court in the case of Ex-Constable Amrik Singh (supra), the second contention of the petitioner must also fail. The Hon'ble Supreme Court has categorically held that no hearing is required to be given to the petitioner before disposing of a petition under Section 117(2) of the BSF Act. In my opinion, the same principle should apply also to a petition under Section 117(1) of the said Act. 40. In view of the aforesaid, this writ application fails and is dismissed. However, there will be no order as to costs. 41. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.