Full Judgment Text
2023INSC802
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8629-8630 OF 2014
UNION OF INDIA & OTHERS … Appellants
Versus
JOGESHWAR SWAIN … Respondent
J U D G M E N T
MANOJ MISRA, J.
1. These appeals are directed against the
judgment and order of the High Court of Delhi at New
Delhi (in short, “the High Court”), dated 21.02.2013,
by which W.P. (C) No. 17430 of 2006 filed by the
respondent (the original petitioner) was allowed, the
punishment of dismissal imposed upon the original
petitioner was set aside and a direction was issued
that the original petitioner would be entitled to full
consequential benefits except salary to the extent of
50%. The appellants have also challenged the order
of the High Court dated 22.11.2013, by which the
Signature Not Verified
review petition of the appellants seeking a review of
Digitally signed by
Narendra Prasad
Date: 2023.09.05
18:32:40 IST
Reason:
the order dated 21.02.2013 was dismissed, though
Civil Appeal Nos. 8629-8630 of 2014 Page 1 of 31
certain observations made in the earlier order were
recalled.
FACTS
2. The original petitioner/accused (the
respondent herein) was a Constable (General Duty) in
the Border Security Force (in short “BSF”). The case
against him was that while he was posted as a
security aide to a lady doctor, on 17.06.2005, at
about 7.45 pm, he clicked pictures of that lady doctor
while she was taking her bath. The allegations
against him were that,-- on the fateful day, the lady
doctor requested him to leave her quarter as she were
to take a bath; while she was bathing, she noticed
through the window of her bathroom two camera
flashes; suspecting foul play, she raised an alarm; on
her alarm, her mother went out but could find none;
later, the matter was reported to the Chief Medical
Officer; the BSF authorities investigated the matter
and put the original petitioner under open arrest.
During investigation a camera was recovered from
the residential quarter of another person, who was a
neighbour of that lady doctor. Thereafter, under
orders of the Battalion Commandant, proceedings
were initiated against the original petitioner in
respect of commission of an offence under Section 40
Civil Appeal Nos. 8629-8630 of 2014 Page 2 of 31
of the Border Security Force Act, 1968 (in short, “BSF
Act, 1968”), that is for committing an act prejudicial
to the good order and discipline of the Force (BSF),
and record of evidence was prepared. On completion
of the record of evidence, the Commandant remanded
the original petitioner for trial by a Summary
Security Force Court (in short, “SSFC”). The SSFC
rd
held its proceedings on 23 July, 2005 wherein the
original petitioner is stated to have pleaded guilty.
Based on that, the SSFC dismissed the original
petitioner from service.
3. Aggrieved by his dismissal from service, the
original petitioner filed an appeal under Section 117
of the BSF Act, 1968 before the Appellate Authority.
In the appeal, the original petitioner refuted the
allegations of clicking pictures of the lady doctor
while she was taking her bath and claimed that,--
while recording the evidence, the prosecution
witnesses were not offered for cross-examination;
there was no evidence forthcoming against the
original petitioner in the testimony of prosecution
witnesses; the reel of the camera allegedly used in
commission of the offence was not developed; the
statement of PW-9 with regard to concealment of the
camera in her house by the original petitioner was
contradictory to her previous statement where no
Civil Appeal Nos. 8629-8630 of 2014 Page 3 of 31
such allegation was levelled by her; nothing
incriminating was recovered from the possession of
the original petitioner; the statement of prosecution
witnesses indicated that the original petitioner had
denied the allegations levelled against him, therefore,
there was no reason for making a confessional
statement, hence, the same cannot be the sole basis
for the punishment. In the alternative, the original
petitioner pleaded that he was a young man, aged 31
years, who had diligently discharged his duties for
over 11 years without a complaint, therefore, even if
the original petitioner is found guilty, a lenient view
be taken by taking into account that he has old
parents and a family dependent on him.
4. The aforesaid statutory appeal of the original
petitioner was dismissed by the Director General,
BSF, New Delhi. The letter communicating dismissal
of the appeal recited that since the original petitioner
had pleaded guilty to the charge, the SSFC justifiably
held him guilty and dismissed him from service.
5. Aggrieved by dismissal of his appeal, the
original petitioner filed writ petition before the High
Court.
FINDINGS OF THE HIGH COURT
6. Before the High Court, the orders impugned
in the writ petition were questioned on two grounds:
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(a) that there were procedural infirmities in
conducting the proceedings and recording of
evidence; and (b) that the evidence recorded did not
inculpate him. With regard to the first ground, it was
pointed out that Rule 60 of the Border Security Force
Rules, 1969 (in short, BSF Rules, 1969”) disqualified
an officer from serving as a Court if he was the officer
who convened the Court; or is the Commandant of
the accused. The High Court observed that the SSFC
was not only convened but also presided over by the
Commandant of the original petitioner which vitiated
the proceedings of the SSFC. The High Court,
however, also examined as to whether there was any
worth-while evidence against the original petitioner.
After considering the statement of the witnesses
recorded while preparing the record of evidence, the
High Court in paragraph 23 of its judgment observed:
“23. A close analysis of the evidence would
highlight the following circumstances:
(1) PW-1 noticed two camera flashes, whilst she
th
was bathing, around 7-45 PM on 17 June,
2005, after she asked the petitioner to leave the
premises. Despite her alert, no one was caught.
PW-2 corroborated this. PW-3 who reached the
spot, also could not see anyone.
(2) The petitioner was asked to report back
immediately; he did so. During the intervening
period, he went to Const. Kunnu’s house, and
borrowed boots. This was verified from the
latter’s wife and sister-in-law (PW 9) the same
day. PW-9 did not mention anything about any
Civil Appeal Nos. 8629-8630 of 2014 Page 5 of 31
camera or the petitioner having asked her to
hide it, when officials enquired from her.
(3) No incriminating object or article including
the camera was seized from the petitioner’s
possession. It is unclear as to who owned the
camera seized by the respondents.
(4) The petitioner was placed under open arrest
the next day. He – according to PW-7, PW-8 and
another witness, confessed to having clicked
with the camera and having hidden it with PW-
9. The next day, PW-9 made another statement,
leading to recovery of the camera. This internal
contradiction between the version of PW-9
assumes importance because in her first
statement, she never said anything about the
camera. Her deposition in the Record of
Evidence proceeding was over a week later, i.e.
25.06.2005.
(5) No written record of the confession said to
th
have been made on 18 June, 2005 exists;
(6) Most importantly, the camera reel (though
th
recovered on 18 June, 2005) was never
developed. It was the best evidence of the
petitioner’s culpability.”
7. In addition to the above observations, the
High Court found that while preparing the record of
evidence, the last statement of the prosecution
witnesses was recorded on 29.06.2005 and on the
same day, without even giving twenty four hours’
time to the original petitioner to reflect upon the
evidence, as is the mandate of the proviso to sub rule
(3) of Rule 49 of the BSF Rules, 1969, the statement
of the original petitioner was recorded.
Civil Appeal Nos. 8629-8630 of 2014 Page 6 of 31
8. The High Court noticed that the minutes of
the proceeding recording acceptance of guilt by the
original petitioner before the SSFC was not signed by
the original petitioner.
9. Taking all the aforesaid circumstances as well
as the plea that no confession was made by the
original petitioner into consideration, the High Court
opined that there was no worthwhile evidence against
the original petitioner as to weigh on him to admit his
guilt. The High Court thus allowed the writ petition
by the impugned order dated 21.02.2013.
10. After the writ petition was allowed by the High
Court, the appellants herein filed a review petition
claiming therein that the view taken by the High
Court that there was infraction of Rules 60 and 61 of
the BSF Rules, 1969 is erroneous because those
provisions get attracted only if the trial is by a
“General” or a “Petty” Security Force Court, whereas
the original petitioner was tried by a “Summary”
Security Force Court in terms of section 70 of the
BSF Act, 1968.
11. On consideration of the plea taken in the
review petition, the High Court recalled its
observations regarding infraction of Rules 60 and 61
of the BSF Rules, 1969 in conduct of the
proceedings, but rejected the review petition as the
Civil Appeal Nos. 8629-8630 of 2014 Page 7 of 31
writ petition was allowed on consideration of the
merits of the prosecution evidence.
12. Aggrieved by the orders of the High Court, the
Union of India and BSF administration are in appeal
before us.
13. We have heard Mr. R. Balasubramanian,
learned senior counsel, for the appellants; and Mr.
Yasobant Das, learned senior counsel, for the
respondent (original petitioner).
SUBMISSIONS ON BEHALF OF THE APPELLANTS
14. The learned counsel for the appellants
submitted:
(a) The High Court exceeded its
jurisdiction by appreciating the
evidence led while preparing the
record of evidence when the SSFC
decided the matter on acceptance of
guilt by the original petitioner.
(b) There was no procedural defect in
the trial or in the investigation,
which preceded it.
(c) The record of evidence indicated that
though initially the original
petitioner denied the allegations but,
ultimately, he admitted his guilt.
Otherwise also, from the statement
Civil Appeal Nos. 8629-8630 of 2014 Page 8 of 31
of PW-9, recorded during
preparation of the record of evidence,
it was proved that the original
petitioner had kept that camera in
her house.
(d) Adverse inference against the
department could not have been
drawn for not developing the reel of
that camera because the original
petitioner had admitted his guilt.
(e) Absence of signature of the accused
on the minutes of the proceedings
recording acceptance of guilt by him
does not violate any of the Rules
contained in the then operating BSF
Rules, 1969, as such requirement
was inserted in the Rule with effect
from 25.11.2011.
In a nutshell, the submissions on behalf of
the appellants were that there was no infraction of
the procedure prescribed; the principles of natural
justice were duly observed; the decision was based
on acceptance of guilt; and since the original
petitioner is part of a disciplined force and was found
guilty of clicking photographs of a lady doctor while
she was taking a bath, and whom he was required to
Civil Appeal Nos. 8629-8630 of 2014 Page 9 of 31
protect, the punishment of dismissal cannot be
faulted. Consequently, the order of the High Court
deserves to be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
15. Per Contra, on behalf of the respondent it was
submitted that the order passed by the High Court is
just and proper based on appreciation of the
materials on record. Moreover, taking into account
that there was no eyewitness of photographs being
clicked by the original petitioner and no
incriminating object or article was recovered from the
original petitioner’s possession, there was no reason
for the original petitioner to accept his guilt. Further,
as the whole case of the department is based on the
confession, which is disputed by the original
petitioner, and the minutes of the proceeding
recording confession is not signed by the petitioner,
the High Court rightly explored the evidence to find
out whether in the circumstances making of such a
confession was probable or not. Otherwise also,
before the SSFC, no evidence was led and the record
of evidence did not satisfactorily establish the charge
against the original petitioner and, therefore, a
decision was taken to remand the original petitioner
for a trial by an SSFC. In these circumstances, there
Civil Appeal Nos. 8629-8630 of 2014 Page 10 of 31
was no occasion for the original petitioner to admit
his guilt. Consequently, once the High Court on
overall assessment of the materials placed on record
has taken a sound view of the matter, it would not be
a fit case where the discretionary powers under
Article 136 of the Constitution of India be invoked to
set aside an order whereby substantial justice has
been done.
16. In addition to the above, the learned counsel
for the respondent pointed out certain procedural
infirmities, which, according to him, vitiated the
proceedings, namely,-
(i) The first confessional statement was
recorded in violation of Rule 49 (3) of
the BSF Rules, 1969, inasmuch as
copy of the abstract of evidence was
not made available to the accused
and the accused was not cautioned
in the manner laid down in sub-rule
(3) of Rule 48 before recording his
statement. Moreover, it was recorded
on the same day when the deposition
of the last witness was recorded,
that is, without giving 24 hours’ time
for reflection, as is the mandate of
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the proviso to sub-rule (3) of Rule 49
of the BSF Rules, 1969;
(ii) When the confession was recorded,
the original petitioner was under
open arrest, therefore such a
confession would be hit by Section
26 of the Indian Evidence Act, 1872
which becomes applicable by virtue
of Section 87 of the BSF Act, 1968;
(iii) The SSFC comprised of the
Commandant of the accused as such
he was disqualified from being a part
of the Court by virtue of Rule 60 of
the BSF Rules, 1969. That apart, the
Commandant had ordered for
preparation of the record of evidence
as well as for open arrest of the
original petitioner therefore, conduct
of trial by him amounted to gross
violation of the principles of natural
justice.
In a nutshell, the submission of the learned
counsel for the respondent is that the dismissal of the
original petitioner (the respondent herein) is not only
vitiated by infraction of prescribed procedure but is
based on no evidence. Therefore, the order passed by
Civil Appeal Nos. 8629-8630 of 2014 Page 12 of 31
the High Court is not liable to be interfered with in
exercise of jurisdiction of this Court under Article 136
of the Constitution of India.
DISCUSSION
17. We have considered the submissions and
have perused the record. As we notice that the order
of dismissal from service was based on original
petitioner’s acceptance of his guilt before the SSFC,
before proceeding further, it would be useful to have a
glimpse of the relevant provisions of the BSF Act,
1968 and the BSF Rules, 1969 concerning a “Security
Force Court” and proceedings before it.
18. Section 2 (u) of the BSF Act, 1968 defines
“Security Force Court” as, “means a court referred to
in section 64”. Section 64 of the BSF Act provides:
“… there shall be three kinds of Security Force
Courts: -
(a) General Security Force Courts;
(b) Petty Security Force Courts; and
(c) Summary Security Force Courts.”
19. Section 87, which applies to all kinds of
Security Force Courts, provides that the Indian
Evidence Act, 1872 (Act No. 1 of 1872) shall, subject
to the provisions of the BSF Act, 1968, apply to all
proceedings before a Security Force Court.
20. In this case the dismissal order was passed
by an SSFC. It would thus be appropriate to have a
Civil Appeal Nos. 8629-8630 of 2014 Page 13 of 31
look at the relevant provisions concerning an SSFC.
Section 70 provides: -
“S.70. Summary Security Force Court.—
(1) A Summary Security Force Court may be
held by the Commandant of any unit of the
Force and he alone shall constitute the Court.
(2) The proceedings shall be attended
throughout by two other persons who shall be
officers or subordinate officers or one of either,
and who shall not as such, be sworn or
affirmed.”
21. Punishments awardable by a Security Force
Court are specified in Section 48 of the BSF Act,
1968 which, inter-alia, includes the power to dismiss
from service.
22. Section 141 (1) of the BSF Act, 1968
empowers the Central Government to make rules for
the purpose of carrying into effect the provisions of
the BSF Act, 1968. Sub-section (2) of Section 141,
inter alia, provides:
“(2) In particular, and without prejudice to the
generality of the foregoing power to frame such
rules as may provide for,--
(a) ….
(b) ….
(c) …..
(d) ……
(e) the removal, retirement, release or discharge
from the service of persons subject to this Act;
(f) ……
Civil Appeal Nos. 8629-8630 of 2014 Page 14 of 31
(g) the convening, constitution, adjournment,
dissolution and sittings of Security Force
Courts, the procedure to be observed in trials
by such courts, the persons by whom an
accused may be defended in such trials and the
appearance of such persons thereat;
(h)…….
(i) the forms of orders to be made under the
provisions of this Act relating to Security Force
Courts and the awards and the infliction of
death, imprisonment, and detention
(j)…..
(k) any matter necessary for the purpose of
carrying this Act into execution, as far as it
relates to the investigation, arrest, custody,
trial, and punishment of offences triable or
punishable under this Act
(l)……
(m) the convening of, the constitution,
procedure and practice of, Courts of inquiry,
the summoning of witnesses before them and
the administration of oaths by such Courts
(n). ...
(o). …”
23. In exercise of its powers conferred upon it by
Section 141 of the BSF Act, 1968, the Central
Government notified BSF Rules, 1969. Chapter VII of
the BSF Rules, 1969 deals with investigation and
summary disposal. Rule 43 provides that where it is
alleged that a person subject to the Act other than an
Civil Appeal Nos. 8629-8630 of 2014 Page 15 of 31
officer or a subordinate officer has committed an
offence punishable thereunder, the allegation shall be
reduced to writing in the form set out in Appendix IV.
Whereas, if the offence is allegedly committed by an
officer or a subordinate officer then the allegation
shall be reduced to writing in the form set out in
Appendix VI. Rule 45, inter alia, provides: -
“45. Hearing of the charge against an
enrolled person.—
(1) The charge shall be heard by the
Commandant of the accused in the following
manner: -
(i) The charge and statements of witnesses, if
recorded, shall be read over to the accused;
(ii) If written statements of witnesses are not
available, or where the Commandant considers
it necessary to call any witness, he shall hear
as many witnesses as he may consider essential
to enable him to determine the issue;
(iii) Wherever witnesses are called by the
Commandant, the accused shall be given
opportunity to cross-examine them;
(iv) Thereafter, the accused shall be given an
opportunity to make a statement in his defence.
(2) After hearing the charge under sub-rule (1),
the Commandant may—
(i) award any of the punishments which he
is empowered to award, or
(ii) dismiss the charge, or
Civil Appeal Nos. 8629-8630 of 2014 Page 16 of 31
(iii) remand the accused, for preparing a
record of evidence or for preparation of an
abstract of evidence against him, or
(iv) remand him for trial by a Summary
Security Force Court:
Provided that, in case where the
Commandant awards more than 7 days’ of
imprisonment or detention he shall record the
substance of evidence and the defence of the
accused ...”
24. In the instant case, it is not in dispute that
the Commandant on 21.06.2005 ordered for
preparing the record of evidence.
25. Rule 48 deals with preparation of the record
of evidence. It provides that where the officer orders
for the record of evidence, he may either prepare the
record of evidence himself or detail another officer to
do so. Sub-rule (2) of Rule 48 provides that the
witnesses shall give their evidence in the presence of
the accused and the accused shall have right to
cross-examine all witnesses who give evidence
against him. Sub rule (3) of Rule 48 provides that
after all the witnesses against the accused have been
examined, he shall be cautioned in the following
terms: “ You may make a statement if you wish to do
so, you are not bound to make one and whatever you
state shall be taken down in writing and may be used
in evidence .” After having been cautioned in the
Civil Appeal Nos. 8629-8630 of 2014 Page 17 of 31
aforesaid manner whatever the accused states is to
be taken down in writing. Sub-rules (4) to (6) of Rule
48 provide as follows:
“(4) The accused may call witnesses in defence
and the officer recording the evidence may ask
any question that may be necessary to clarify
the evidence given by such witnesses.
(5) All witnesses shall give evidence on oath or
affirmation: provided that, no oath or
affirmation shall be given to the accused nor
shall be cross-examined.
(6)(a) The statements given by witnesses shall
ordinarily be recorded in narrative form and the
officer recording the evidence may, at the
request of the accused, permit any portion of
the evidence to be recorded in the form of
question and answer;
(b) The witnesses shall sign their statements
after the same have been read over and
explained to them.”
Sub-rule (8) of Rule 48 provides that after the
recording of evidence is completed the officer
recording the evidence shall give a certificate in the
following form: -
“Certified that the record of evidence ordered by
… Commandant … was made in the presence
and hearing of the accused and the provisions
of rule 48 have been complied with.”
26. Rule 49 of the BSF Rules, 1969 provides for
preparation of an abstract of evidence. Sub-rule (2)(a)
of Rule 49 provides that the abstract of evidence,
shall include,--- (i) signed statements of witnesses
Civil Appeal Nos. 8629-8630 of 2014 Page 18 of 31
wherever available or a precis thereof, or (ii) copies of
all documents intended to be produced at the trial.
Sub-rule 2(b) of Rule 49 provides that where signed
statements of any witnesses are not available a precis
of their evidence shall be included. Sub-rule (3) of
Rule 49 provides:
“49 (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.”
27. In the instant case, from the materials
brought on record we find that the original petitioner
was placed under open arrest on 20.06.2005. On
21.06.2005, the Commandant of 128 Battalion BSF,
wherein the original petitioner was posted, issued an
order for recording of evidence. During the course of
recording of evidence, the last witness statement,
that is of PW-10, was recorded on 29.06.2005. On
29.06.2005 itself, the original petitioner was asked to
give his statement. According to the original
petitioner, the abstract of evidence was not provided
to him and twenty-four hours’ time was not given to
Civil Appeal Nos. 8629-8630 of 2014 Page 19 of 31
him for reflection therefore, there was a clear
infraction of the proviso to sub rule (3) of Rule 49 of
the BSF Rules, 1969. Hence, according to the original
petitioner, confession, if any, made during the course
of preparation of the record of evidence, is liable to be
ignored.
28. In our view, there appears substance in the
aforesaid submission of the learned counsel for the
original petitioner. Moreover, in the instant case after
preparing the record of evidence, the Commandant in
exercise of his power under Rule 45(2)(iv) of the BSF
Rules, 1969, vide order dated 05.07.2005, remanded
the original petitioner for trial by an SSFC. In these
circumstances, the trial had to proceed as per
Chapter XI of the BSF Rules, 1969 and, therefore, the
statement, if any, recorded during investigation or
preparation of the record of evidence could have been
used as a previous statement of the witness for the
purposes of cross-examining the witness as and
when the witness was examined before the Security
Force Court. This we say so, because by virtue of
Section 87 of the BSF Act, 1968 the general rules of
evidence as laid in the Evidence Act, 1872, subject to
the provisions of the BSF Act, 1968, are applicable to
all proceedings before a Security Force Court.
Therefore, by virtue of Section 145 of the Evidence
Civil Appeal Nos. 8629-8630 of 2014 Page 20 of 31
Act, 1872, a witness may be cross examined as to
previous statements made by him.
29. Insofar as the proceedings against the original
petitioner before the SSFC are concerned, a perusal
of the record would reflect that they commenced on
23.07.2005 at the Headquarter of 128 Battalion,
BSF. As per record of the proceedings dated
23.07.2005, the charge-sheet was read out and
explained to the accused (original petitioner) and the
accused was asked whether he is guilty or not of the
charge. As per record of the proceedings, the answer
of the accused is recorded in following terms:
“Ans: Guilty.”
After recording the answer as above, it
proceeds to record:
“ The accused having pleaded guilty to the
charge, the court explains to the accused the
meaning of charge(s) to which he has pleaded
guilty and ascertains that the accused
understands the nature of the charge(s) to
which he has pleaded guilty. The court also
inform the accused the general effect of that
plea and the difference in procedure which will
be followed consequent to the said plea. The
court having satisfied itself that the accused
understands the charge(s) and the effect of his
plea of guilty, accepts and records the same.
The provisions of Rule 142(2) are complied
with.”
30. Thereafter, the proceeding on the plea of
guilty is recorded in following terms: -
Civil Appeal Nos. 8629-8630 of 2014 Page 21 of 31
“The accused No. 959220216; Rank: Constable;
Name: Jogeshwar Swain of 128 BN BSF, is
found guilty of the charge.
The record of evidence is read (translated),
explained, marked “K” signed by the Court and
attached to the proceedings.
Q.- Do you wish to make any statement in
reference to the charge or in mitigation of
punishment?
Ans. The accused says: I have committed an
offence. Please pardon me. I will not repeat in
future.
Q. Do you wish to call any witness as to
character?
Ans. No. ”
31. The minutes of the proceedings reflect that
after the defence was closed, the Court’s verdict came
in following terms: -
“Verdict of the Court
“I am of the opinion on the evidence before me
that the accused No. 959220216 Rank
Constable Name Jogeshwar Swain of 128 Bn
BSF is guilty of the charge.”
Thereafter before pronouncing the sentence,
original petitioner’s past record was considered as
under:
“It is within my own knowledge from the records
of the Battalion that the accused has not been
previously convicted by Security Force Court or
Criminal Court …
That the following is a fair and true summary of
entries in his defaulter sheet exclusive of
Civil Appeal Nos. 8629-8630 of 2014 Page 22 of 31
convictions by a Security Force Court or a
Criminal Court
Within last 12 months: Nil
Since Enrolment: Nil
That he is at present undergoing NIL sentence.
That, irrespective of this trial, his general
character has been satisfactory.
That his age is 30 yrs, …
His service is 10 years, 2 months, 15 days and
his rank is Constable 8-5-95. That he has been
in arrest/confinement for NIL days. That he is
in possession of the following decorations and
rewards: - NIL”
After considering the past record of the
original petitioner, sentence was awarded in following
terms:
“SENTENCE BY THE COURT
Taking all these matters into consideration. I
now sentence the Accused No. 959220216 Rank
Constable; Name: Jogeshwar Swain of 128 Bn
BSF to be dismissed from the service.
Signed at HQ 128 Bn BSF Patgaon, Ghty-17 on
rd
this 23 day of July 2005.
Sd/- Commandant.
Dt/- 23.07.2005”
32. A perusal of the minutes of the proceedings of
the SSFC dated 23.07.2005 would indicate that
though the plea of guilty was recorded during the
course of the proceedings dated 23.07.2005 but the
Civil Appeal Nos. 8629-8630 of 2014 Page 23 of 31
minutes are not signed by the original petitioner. It is
only signed by the Commandant 128 Battalion BSF,
namely, Ghanshyam Purswani.
33. Rule 142 of the BSF Rules, 1969 which fall in
Chapter XI of the BSF Rules, 1969 deals with the
manner in which an SSFC is required to record the
plea of guilty. Rule 143 provides for the procedure
after the plea of guilty is recorded. The relevant
portion of Rule 142 as it stood on the date of the
proceeding in question is reproduced below:
“142. General plea of “Guilty” or “Not
Guilty”.—
(1) The accused person’s plea of “Guilty” or “Not
Guilty” or if he refuses to plead or does not
plead intelligibly either one or the other), a plea
of “Not Guilty” shall be recorded on each
charge.
(2) If an accused person pleads “Guilty”, that
plea shall be recorded as the finding of the
Court; but before it is recorded, the Court shall
ascertain that the accused understands the
nature of the charge to which he has pleaded
guilty and shall inform him of the general effect
of that plea, and in particular of the meaning of
the charge to which he has pleaded guilty, and
of the difference in procedure which will be
made by the plea of guilty and shall advise
him to withdraw that plea if it appears from
the record or abstract of evidence (if any) or
otherwise that the accused ought to plead
not guilty. ”
34. A plain reading of sub-rule (2) of Rule 142
would indicate that on the accused pleading guilty,
Civil Appeal Nos. 8629-8630 of 2014 Page 24 of 31
before a finding of “Guilty” is recorded, the SSFC is
not only required to ascertain whether the accused
understands the nature and meaning of the charge to
which he has pleaded guilty but it must also inform
the accused of the general effect of that plea and of
the difference in procedure which will be made by the
plea of guilty. That apart, even if the accused pleads
guilty, if it appears from the record or abstract of
evidence or otherwise that the accused ought to
plead not guilty, the SSFC is required to advise him
to withdraw that plea.
35. Before acting on the plea of guilty, compliance
of the procedural safeguards laid down in sub-rule
(2) of Rule 142 is important as it serves a dual
purpose. First, it ensures that before pleading guilty
the accused is aware of not only the nature and
meaning of the charge which he has to face but also
the broad consequences that he may have to suffer
once he pleads guilty. This not only obviates the
possibility of an uninformed confession but also such
confessions that are made under a false hope that
one could escape punishment by pleading guilty. The
other purpose which it seeks to serve is that it
ensures that confessions do not become an easy way
out for deciding cases where marshalling of evidence
to prove the charge becomes difficult. It is for this
Civil Appeal Nos. 8629-8630 of 2014 Page 25 of 31
reason that sub-rule (2) of Rule 142 requires an
SSFC to advise the accused to withdraw the plea of
guilty if it appears from the examination of the record
or abstract of evidence that the accused ought to
plead not guilty. Since, the procedure laid in sub-
rule (2) of Rule 142 serves an important purpose and
is for the benefit of an accused, in our view, its strict
adherence is warranted before accepting a plea of
guilty.
36. Reverting to the facts of this case, we notice
from the record that the minutes of the proceedings
of the SSFC dated 23.07.2005 do not indicate as to
what advise was rendered to the accused with regard
to the general effect of the plea of guilty taken by
him. The minutes dated 23.07.2005 are nothing but
a verbatim reproduction of the statutory rule. There
is no indication as to how the accused was explained
of the broad consequences of him pleading guilty.
Verbatim reproduction of the statutory rule and
nothing further, in our view, is no compliance of the
provisions of sub-rule (2) of Rule 142 of the BSF
Rules, 1969. Therefore, we are of the view that the
appellants cannot draw benefit from the minutes of
the proceedings as to canvass that the plea of guilty
was accepted after due compliance of the
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requirements of sub-rule (2) of Rule 142 of the BSF
Rules, 1969.
37. Further, the record of the proceedings of
SSFC dated 23.07.2005 does not bear the signature
of the accused. No doubt, the requirement of having
the signature of the accused on the minutes
recording plea of guilty was first introduced by
insertion of the proviso to sub-rule (2) of Rule 142
with effect from 25.11.2011. But there existed no
embargo in obtaining signature of the accused to
lend credence to the making of the plea of guilty.
Absence of signature of the accused in this case
assumes importance because here the accused
denies taking such a plea and looking at the available
evidence, pleading guilty appears to be an unnatural
conduct. At the cost of repetition, it be observed that
the case against the petitioner was in respect of
clicking photographs of a lady doctor while she was
taking her bath. There was no eye-witness of the
incident; the camera was recovered from some other
person’s house; PW-9, a witness to the keeping of the
camera by the accused (i.e., the original petitioner),
in her previous statement made no such disclosure;
there was no cogent evidence with regard to
ownership of that camera; and, above all, even the
reel was not developed to confirm the allegations. In
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these circumstances, when there was a challenge to
the making of such confession before the High Court,
a very heavy burden lay on the non-petitioners
(appellants herein) to satisfy the conscience of the
Court that the plea of guilty was recorded after due
compliance of the procedure prescribed by the BSF
Rules, 1969. As we have already noticed that there
was no proper compliance of the procedure
prescribed by sub-rule (2) of Rule 142 of the BSF
Rules, 1969, absence of signature of the accused in
the minutes further dents the credibility of the SSFC
proceeding. The High Court was therefore justified in
looking at the evidence to find out whether
punishment solely on the basis of confession (i.e.,
plea of guilty) was justified.
38. In this context, the High Court meticulously
examined the record of evidence prepared under the
direction of the Commander to come to the
conclusion that except for the statement of PW-9 that
the camera was hidden by the original petitioner,
there was no worthwhile evidence in respect of his
culpability. The High Court also noticed that even
PW-9 was not consistent, as during investigation PW-
9 had not made any such disclosure that the original
petitioner had hidden the camera in the house from
where it was recovered. What is important is that the
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house from where the camera was recovered was not
the house of the original petitioner but of another
constable who had his house adjoining the quarter
where the lady doctor had taken her bath.
Interestingly, there was no evidence led to indicate
that the said camera was of the original petitioner. In
these circumstances, where was the occasion for the
original petitioner to make confession of his guilt
when there was hardly any evidence against him.
Admittedly, none had seen him clicking photographs
and the lady doctor also did not inculpate the original
petitioner though she might have suspected the
original petitioner. Further, we notice that while
preparing the record of evidence also, plea of guilty of
the original petitioner was recorded, which the
original petitioner claims to have been obtained
under duress and without giving him sufficient time
to reflect upon the evidence as is the mandate of the
proviso to sub-rule (3) of Rule 49 of the BSF Rules,
1969. At this stage, we may remind ourselves that
while preparing the record of evidence the statement
of last witness was recorded on 29.06.2005 and on
that day itself, without giving twenty-four hours’ time
for reflection, as is required by the proviso to sub-
rule (3) of Rule 49 of the BSF Rules, 1969, alleged
confessional statement of the original petitioner was
Civil Appeal Nos. 8629-8630 of 2014 Page 29 of 31
recorded. In these circumstances, when the original
petitioner had raised a plea before the High Court
that his confession was involuntary and that in fact
no confession was made by him, there was a serious
burden on the non-petitioners (i.e., the appellants
herein), to satisfy the conscience of the High Court
that there had been due compliance of the procedure
and that the confession was made voluntarily. More
so, when the record of evidence contained no
worthwhile evidence regarding the guilt of the original
petitioner. In the aforesaid backdrop, the SSFC
ought to have advised the original petitioner to
withdraw the plea of guilt as per provisions of sub-
rule (2) of Rule 142 of the BSF Rules, 1969.
39. In light of the discussion above and also
taking into account that the minutes of the
proceedings recording the plea of guilty did not bear
the signature of the original petitioner, in our
considered view, the High Court was justified in
finding the dismissal of the original petitioner on the
basis of the plea of guilty unwarranted and liable to
be set aside in exercise of powers under Article 226 of
the Constitution of India. The High Court was also
justified in not re-opening the proceeding from the
stage where the error crept in by noticing that it
would serve no useful purpose as there was hardly
Civil Appeal Nos. 8629-8630 of 2014 Page 30 of 31
any evidence on record and nearly a decade had
passed since the date of the incident.
40. For all the reasons above, we do not find it a
fit case for interference in exercise of our jurisdiction
under Article 136 of the Constitution of India. The
appeals are dismissed. Parties to bear their own
costs.
......................................J.
(J. B. Pardiwala)
......................................J.
(Manoj Misra)
New Delhi;
September 05, 2023
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