Full Judgment Text
$~77
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7056/2023, CM APPL. 52425/2025 & CRL.M.(BAIL)
1548/2023
RAKESH BABU .....Petitioner
Through: Mr. Nityanand Singh, Mr.
Vinay Ahrodia, Ms. Sonu Kumari and Ms.
Prity Raj, Advocates
versus
UNION OF INDIA & ORS .....Respondents
Through: Ms. Radhika Bishwajit Dubey,
CGSC with Ms. Gurleen Kaur Waraich, Mr.
Kritarth Upadhyay, Mr. Vivek Sharma, Ms.
Aprajita Verma, Ms. Khushi, Mr. Saksham
Sharma, Advocates with Mr. Paramveer
Singh, BSF
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT (ORAL)
% 28.08.2025
C. HARI SHANKAR, J.
1
1. The petitioner joined the services of the Border Security Force
on 30 June 2008, and was initially posted at Gwalior. With effect from
5 March 2019, he was posted as Sub Inspector (Vet) at Silchar,
Assam.
2. The present dispute relates to an offence alleged to have been
1
BSF
Signature Not Verified
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KUMAR
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W.P.(C) 7056/2023 Page 1 of 22
committed by the petitioner, in respect of which a First Information
2
Report was registered against him at Police Outpost, Cacher, Assam,
3 4 5 6
under Sections 342 , 365 and 377 of the Indian Penal Code, 1860
7
read with Section 6 of the Protection of Children From Sexual
8
Offences Act, 2012 . It was alleged that the petitioner had sodomized
9
a 10-year old boy X on 8 July 2021, and had also threatened to kill
him if he reported the incident to anyone.
3. The facts relating to the said incident, as they emerge from the
recitals in the FIR and the record of the proceedings of the General
10
Security Force Court which followed, are broadly as follows. On 8
July 2021, around 6:45 pm, X was sent by his mother to a nearby shop
within the BSF Camp. Upon returning back home, in a state of shock,
X informed his mother that he was sexually assaulted and sodomized
by the petitioner who had also threatened to kill him if he informed
about the incident to anyone. The Unit Adjutant, 134 Bn BSF, was
informed of the incident. The house of the petitioner was raided. The
petitioner was found lying in his house in an inebriated state. He was
2
FIR
3
342. Punishment for wrongful confinement .—Whoever wrongfully confines any person, shall be
punished with imprisonment of either description for a term which may extend to one year, or with fine which
may extend to one thousand rupees, or with both.
4
365. Kidnapping or abducting with intent secretly and wrongfully to confine person .—Whoever
kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall
be punished with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.
5
377. Unnatural offences .—Whoever voluntarily has carnal intercourse against the order of nature with any
397
man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
6
IPC
7
6. Punishment for aggravated penetrative sexual assault .—(1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty
years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of
natural life of that person, and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the
medical expenses and rehabilitation of such victim.
8
“the POCSO Act” hereinafter
9
Identity withheld
10
GSFC
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W.P.(C) 7056/2023 Page 2 of 22
then taken for an identification parade, where the victim identified the
petitioner as the person who sexually assaulted him. The petitioner
was then taken to the BSF Hospital and examined by a medical
officer. He was then placed under suspension with immediate effect
and was ordered not to leave the Headquarters without obtaining prior
permission. The aforenoted FIR was registered the next day.
4. The petitioner was tried for the said offences by the GSFC on
the following charges:
(i) First Charge: “Committing a civil offence that is to say
aggravated penetrative sexual assault punishable under Section
6 of the POCSO Act, 2012”.
(ii) Second Charge: Committing a civil offence that is to say
voluntarily having carnal intercourse against the order of nature
with a male child punishable under Section 377 IPC.
(iii) Third Charge: Committing a civil offence that is to say
wrongfully confining a person punishable under Section 342
IPC
5. The GSFC, after admittedly following the prescribed procedure,
found the petitioner guilty of all three charges against him. It was
observed that the alibi that the petitioner had sought to press, viz., that
he, on the date of the alleged incident, was in the Establishment
Branch at Headquarters, was falsified by the defence witness whose
evidence the petitioner himself had chosen to lead. The GSFC also
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found material contradictions in the statements of the petitioner,
tendered at different stages. It was found, by the GSFC, that the
petitioner had threatened X with a knife and had forcefully taken him
to the petitioner’s quarters and latched the door from inside, before
committing the act of sexual assault, thereby establishing all the
charges against him.
6. We deem it appropriate to reproduce, in extenso , the findings of
the GSFC:
“BRIEF REASONS IN SUPPORT OF FINDING OF THE
COURT
FIRST ISSUE OF THE FIRST CHARGE
th
That at about 1845 hrs on 8 July 2021, X and the accused
were present in Q/No. 14/Type I, (Ftr SOs Transit Mess).
th
There is no dispute over the fact that on 8 July 2021, the accused
was living and at about 2030 hrs, he was apprehended by PW-2
and his party from quarter used as Ftr SO's Transit Mess, near Ftr
Vet Hospital. The Court also believes the evidence (Exhibit-BB)
produced by PW-10, that the quarter number Ftr SO's Transit Mess
is Q/No. 14/Type-1. The Court also believes the statement of
th
victim child (PW-16) that when on 8 July 2021 at about 1845 hrs,
when he was going to Civil Grocery Shop near Morcha No.-4 to
buy match box, he was forcefully under threat of knife, taken by
the accused to his quarter. The Court also believes that the PW-16
knew the accused before this incident as he has seen accused in Ftr
Vet Hospital and also outside his quarter, where he was forcefully
taken as he used to play/walk in that area. This statement of victim
child that he was aware about the quarter of accused is
corroborated by the PW-20 (witness in reply) who has stated that
children including the victim child used to come to play/walk near
the Ftr Vet Hospital. To come to the issue of time, the Court
believes the evidence of PW-15, that at 1721 hrs and 1725 hrs on
8th July, 2021, he received two photos and two test messages
(Exhibit-JJ') from his wife (PW-1). The Court also believes the
evidence by PW-1, that after coming back to house in distressed
condition after 20-25 min, his son took about 15 minutes to narrate
everything about the incident. Then, she called her husband and
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shared two photos of her son on WhatsApp to show bruises on her
son cheeks. Going back in to the time from 1721 hrs, when PW-15
receives WhatsApp messages from his wife, the Court believes that
th
at about 1845 hrs on 8 July, 2021, the X was present at Q/No. 14,
Type 1, with the accused.
The Court also believes the evidence of victim child (PW-16) when
during the visit of place of incident in the open court, he identifies
the Q/No. 14/Type-1 (Ftr SO's Transit Mess) as the place where the
accused was living and forcefully under threat of knife, took him in
his room and latched the door from inside, threatened him, beat
him and committed a sodomy with him. The Court found material
consistency in the statement of PW-16, which is further
corroborated by statement of PW-1, PW-2, PW-3, PW-15. Hence,
the Court has no hesitation in believing their statement.
The Court does not believe the statement of the accused on oath
that at about 1845 hrs on 8th July, 2021, he was not present in his
quarter at Ftr SOs annexe quarter but was present in Estt Branch at
Main Office of FTR HQ as the statement of the accused is not
supported by the statement of defence witness. DW-1 and DW-2
have deposed that the accused visited the Estt Branch Ftr HQ BSF
M&C at about 1820 hrs, stayed there for total 4-5 minutes. The
distance between Ftr Estt Branch and Q/No. 14/Type-l is about 100
mtrs and it hardly takes 3-5 minutes to cover that distance. DW-3
deposed that the accused visit Q-Store at 1800 hrs and after getting
his clothing issued, within 4-5 min the accused left the Q store.
DW-4 in his statement has stated that at about 1745 hrs, he was
standing in queue for collection of liquor for the accused, it took
him 10 minutes to collect the liquor, then for next 10 minutes, he
remained in the jawan barrack area, then he took his scooty and
reached at accused's quarter near vet hospital within 5 minutes, this
way after 1745 hrs, he took 25 minutes more, i.e. by 1810 hrs, he
had reached at accused's quarter and that time accused by present
in his quarter so. None of the defence witness could support the
statement of accused that at 1845 hrs he was present in Estt Branch
of Ftr HQ M&C. Whereas, as per the evidence produced by the
defence itself, the accused had reached his quarter at Ftr SOs
Transit Mess, by all counts before 1830 hrs.
The Court also found material contradictions in the statement of
the accused given at different occasions i.e. before doctor who
done his medical examination at SMCH, during SCOI and ROE
and before this Court. Due to material contradiction in his
statement, the Court found the statement of accused not
trustworthy.
Considering above, the Court takes first issue of the first charge
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proved and moves to second issue of the first charge.
SECOND ISSUE OF THE FIRST CHARGE
That the accused at about 1845 hrs on 8th July 2021,
committed penetrative sexual assault on X in Q/No. 14/Type
I(Ftr SOs Transit Mess).
The Court believes the statement of PW-16, X (victim child) that
when at about 1845 hrs on 8th July, 2021, he was going towards
Civil Grocery Shop near Morcha No.-4 to buy match box, taking
tiled pathway passing in front of accused's quarter, the accused
called him and took him upto back side of Ftr Vet Hospital, kissed
him on his lips and cheeks, threatened him with knife and
forcefully took him to his quarter at Q/No. 14/Type-I (Ftr SOs
Transit Mess) and forcefully removed his pant, applied oil on his
back and penetrate his penis into his anus and then shook. PW-16
feel pain in this act. After shaking, when the accused cleaning his
main part, moved inside the second room of the his quarter, he got
the opportunity to run away from there.
The statement of X (PW-16) is also corroborated by statement of
his mother (PW-1) and his father (PW-15), who has stated that X
after reaching home, informed PW-1 about the whole incident that
accused had committed penetrative sexual assault on him and then,
PW-1 further informed the whole incident to his husband (PW-15).
While enroute to BN HQ, PW-15 also asked X about the incident
and he again narrated the whole incident to his father that accused
entered his main part into his bum and shook, as his wife narrated
to him. The statement of X is also corroborated by the evidence of
medical expert supported by medical evidence (Exhibit CC)
wherein it is clearly mentioned that medical examination of X was
th
conducted at 1145 hrs on 9 July 2021 at Silchar Medical College
and Hospital (SMCH) and medical board in their medical report
has clearly opined that the X has sustained injury in his anal orifice
which is suggestive of forceful sexual penetration, either attempted
or committed. The medical report opined that injury sustained in
his face is consistent to have been caused by sustained forceful
kissing. The above statement by the PW-1, PW-15 and PW-16 is
also corroborated by the evidence of PW-2.
th
Considering, the evidence of X that in the morning of 9 July
2021, he had gone for toilet (passage of fecal waste) and washed,
spermatozoa was not detected on anal swabs of the X as the Court
also believes the opinion of the PW-11 that after passing of fecal
waste and washing, the spermatozoa will wash away. The Court
also agree with the opinion of the expert witness (PW-12) who
conducted the medical examination of the accused at 1530 hrs on
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th
9 July 2021 at Silchar Medical College and Hospital and opined
that evidence of involvement in Sexual activity not deducted and
no injuries deducted on his person and during court questions, PW-
12 have further clarified that his opinion that "Evidence of
involvement in Sexual activity not deducted" was issued in
reference to the short immediate period preceding the time, when
the medical examination is conduct as after 20 hrs, it is not possible
to find out whether the person was involved in sexual activity or
not. The Court does not found any benefit out DNA analysis report
which remains inconclusive as the DNA the samples found
fragmented and not be amplified.
Here, the Court found that the prosecution beyond reason doubt
th
established the foundation of its case that accused on 8 July 2021
at about 1845 hrs had committed sexual penetrative assault against
the X at Q/No, 14. Type I(Ftr SOs Transit Mess) but the accused
did not produce any evidence to prove anything contrary to it. So,
the Court is satisfied that defence miserably failed to dispel the
presumption acting against the accused U/S 29 of POCSO Act that
he had committed penetrative sexual assault against X.
The Court also found that the statement of accused during SCOI,
ROE and before his court is full of material contradictions and vital
improvements which makes him highly unreliable witness. Hence,
the accused's statement is not believable. Whereas, the defence fail
to prove any material contradiction in the statements of victim
child, X, given at different stages of this case.
Considering above, the Court takes the second issue of the first
charge proved and moves to last issue of the first charge.
THIRD ISSUE OF THE CHARGE
That the act of accused committing penetrative sexual assault
on X is covered under the provisions of Sec 5 OF POCSO Act,
2012.
The Court believes the statement of X (PW-16) and his father (PW-
15) that the Date of Birth of X is 21.10.2010. The Court also
believes the correctness of Date of Birth Certificate, issued by
Nagar Nigam, Bareilly, Govt of UP mentioning the date of Birth of
X as 21.10.2010. The Court also believes the correctness of
Bonafide Certificate issued by present school of X i.e. KV Rajouri,
the details mention in school Admission Register of last school
attended i.e. KV Rajouri that DOB of X is 21.10.2010. The Court
also believes the finding of medical board which examined X on
th
9 July 2021, who on the basis of bone ossification test, conclude
that age of X is above 10 years and below 12 years.
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The defence does not contradiction these evidence regarding the
DOB and age of X. Considering above evidence, the Court takes
this issue proved that on the date of incident i.e 8th July' 2021, the
age of X was below 12 years.
Hence, the Court takes it proved the act of accused is covered U/S
5 (m) of POCSO Act, 2012.
The Court also takes the issue that accused was public servant
covered under the definition of Sec 21 (twelfth) as there is no
dispute between the prosecution and defence that on the date
incident on 8th July 2021, the accused was appointed under and at
the pay of Border security Force (BSF), a central government
agency. There is admission of this fact by the accused in his
statement on oath and also in reply to question asked by the Court
under BSF Rule 93(2). Hence, the Court takes this issue proved
that act of penetration sexual assault by the accused on X at about
th
1845 hrs, on 8 July 2021 is covered under Sec 5 (c) of the
POCSO Act, 2012.
Hence, the Court takes the first charge of the charge sheet proved
beyond reasonable doubt.
SECOND CHARGE
FIRST ISSUE OF THE SECOND CHARGE
That the accused and X at about 1845 hrs on 8th July 2021,
were present in Q/No. 14/Type I (Ftr SOs Transit Mess).
As the first issue of the second charge is identical to the first issue
of the first charge. Since, the Court after due deliberation on the
evidence available, have already take this issue proved, the court
without repeating the evidence, takes the first issue of the second
charge proved and moves to the second issue of the second charge.
SECOND ISSUE OF THE SECOND CHARGE
That the accused at about 1845 hrs on 8th July' 2021 at Q/No.
14/Type-l (Ftr SO's Transit Mess), had voluntarily penetrated
his penis into the anus of the X.
The Court while deliberating upon the second issue of first charge
finds second issue of the second charge is identical to the second
issue of the first charge except that here there is no mandatory
presumption acting against the accused and the prosecution is also
required to prove that the act of the accused was voluntarily. The
Court believes the evidence of victim child X (PW-16), whose
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statement is corroborated by medical evidence and by the evidence
of PW-1, PW-2, PW-9 and PW-15 that accused had forcefully
taken that accused inside his quarter and there removed the pant of
X and applied oil on his back and penetrated his penis into the anus
of X. The defence did not produce any evidence in rebuttal that the
act of accused, penetrating his penis into the anus of the X was not
voluntary whereas the accused in his evidence have outrightly
denied to have committed any such act of penetrative sexual
assault against X and also denied his presence at his quarter at
given time. The Court has also found material consistency in the
evidence of victim child X on this issue, supported by the medical
evidence but there are material contradictions in the statement of
accused, given at different stages of this case. The evidence of X is
corroborated by the evidence by PW-1, PW-2, PW-9, PW-12 and
PW-15. After due deliberation, the Court has no hesitation to
believe that prosecution has proved beyond reasonable doubt that
accused had voluntarily penetrated his penis into the anus of X.
Hence, the Court takes the second issue of the second charge
proved and the Court moves to last issue of the second charge.
THIRD ISSUE OF THE SECOND CHARGE
It is in the personal knowledge of the court being a mature man that
the nature recognizes that the penile-vaginal intercourse is only
intercourse which is in order of nature and all other mode like anal
sex, oral sex etc are against the order of the nature. The Court has
no hesitation in accepting that the canal intercourse by accused by
penetrating his penis into the anus of X is against the order of the
nature as it does not result into procreation, hence it is unnatural.
Considering this, the Court takes the last issue of the second charge
proved beyond reasonable doubt. Hence, the Court takes the
second charge of the chargesheet proved.
THIRD CHARGE
FIRST ISSUE OF THE THIRD CHARGE
th
That 8 July, 2021, at about 1845 hrs, the accused confined X
in Q/No. 14/Type-l, (Ftr SO's Transit Mess).
The Court believes the statement of the victim child X (PW-16)
that on 8th July 2021 at about 1845 hrs, he was going to civil
grocery shop near Morcha No. - 4 to buy match box. While, he was
passing in front of the accused's quarter at Q/No. 14/Type-l (Ftr
SO's Transit Mess) he was called by the accused, who was standing
in front of his quarter in towel. Since, he knew the accused, he
went to him. The accused by putting his arms on his shoulder
around his neck, talking take him upto Ftr Vet Hospital and there
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he smooched X on his lips and cheeks. Then, the accused pick up a
knife from the window of the Vet Hospital and threatened him to
come to his quarter. When the X denied to come up with him, he
shows the knife and said that he has not kept this knife just to show
off. X got frightened and the accused forcefully took the X to his
quarter and latched the door from the inside and did not allow him
to move from there. The statement of X is also corroborated by the
PW-1, PW-2, PW-9 and PW-15. The Court found material
consistency in statement of above prosecution witnesses. Whereas,
the accused denied his presence at that time in his quarter but said
that at that time he was present in Estt Branch Main Officer of Ftr
HQ BSF M&C. Since, there are material contradictions and vital
improvements in the statement of the accused which makes his
statement highly unreliable. While deliberating in the first issue of
the first charge, the Court has already taken it proved that the
accused and X was present in Q/No. 14/Type-1 (Ftr SO's Transit
Mess). Hence, the Court take this issue proved and moves to the
second issue of the third charge.
SECOND ISSUE OF THE THIRD CHARGE
That the confinement of X in Q/No. 14/Type-1, (Ftr SO's
Transit Mess) by the accused was wrongful.
th
The Court believes the statement of the X (PW-16) that on 8 July
2021 at about 1845 hrs when he was going to civil grocery shop
near Morcha No. -4 to buy match box, the accused showing him
the knife, took him to his quarter Q/No. 14/Type-I forcefully,
against his will. Since, the accused was holding the X tightly
around his neck and carrying knife in his hand, X could not run
away from there and was dragged by the accused to his quarter and
the accused latched the door of his quarter from inside. The
statement of X, was is corroborated by the PW-1, PW-2, PW-9 &
PW-15. The defence did not produce any evidence to rebut the
evidence of the PW-16 and outrightly denied that accused was
present there and had taken the X to his quarter. The accused in his
statement on oath has stated that at the given time he was present in
the Estt Branch, Main Office of Ftr HQ BSF M&C to deposit his
clearance for leave as he was proceeding on leave next day, which
is contradicted by the statement of defence witnesses themselves.
Considering the above evidence, the Court believes that the
accused wrongfully confine the X in his quarter No. 14/Type-l (Ftr
SO's Transit Mess). Hence the Court takes this issue proved.
Hence, the Court takes the third charge of the charge sheet proved
beyond reasonable doubt.”
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7. Following these findings, the GSFC sentenced the petitioner
with Rigorous Imprisonment for 20 years, along with dismissal from
service.
8. The petitioner preferred a pre-confirmation petition, which was
rejected by the Confirming Authority, who confirmed the findings and
sentence imposed by the GSFC.
9. Aggrieved thereby, the petitioner has instituted the present writ
petition.
Submissions of learned Counsel for the petitioner, and findings
thereon
10. Mr. Nityanand Singh, learned counsel for the petitioner,
advances only three arguments, candidly acknowledging that, in
exercise of our jurisdiction under Article 226 of the Constitution of
India, we cannot re-examine evidence.
11. Jurisdiction of the GSFC to try an alleged offence under the
POCSO Act
11.1 The first submission of Mr. Singh is that the GSFC did not have
the jurisdiction to decide an offence under the POCSO Act. He has
11
relies for this purpose on Section 32 of the POCSO Act.
11
32. Special Public Prosecutors . - (1) The State Government shall, by notification in the Official Gazette,
appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of
this Act.
(2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he
had been in practice for not less than seven years as an advocate.
(3) Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public
Prosecutor within the meaning of clause ( u ) of Section 2 of the Code of Criminal Procedure, 1973 (2 of
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11.2 Besides the fact that Section 32 of the POCSO Act deals with
Special Public Prosecutors, their appointment and their qualifications
and is, therefore, entirely irrelevant, the submission is, even otherwise,
12
obviously unsustainable. Section 42A of the POCSO Act clearly
states that the provisions of the POCSO Act shall be in addition to and
not in derogation of any other statute.
11.3 There exist judicial pronouncements which have opined on the
scope and ambit of the expression “in addition to and not in
derogation of”.
11.4 In Secretary, Thirumurugan Cooperative Agricultural Credit
13
Society v M. Lalitha , the Supreme Court was concerned with
Section 3 of the Consumer Protection Act, 1986, which read:
“3. Act not in derogation of any other law . – The provisions
of this Act shall be in addition to and not in derogation of the
provisions of any other law for the time being in force.”
The Supreme Court held, following its earlier decision in Fair Air
14
Engineers (P) Ltd v N.K. Modi , that it was “clear that the legislature
intended to provide a remedy in addition to the consentient arbitration
which could be enforced under the Arbitration Act or the civil action
in a suit under the provisions of the Code of Civil Procedure.”
11.5 A more direct authority is to be found in KSL And Industries
1974) and provision of that Code shall have effect accordingly.
12
42-A. Act not in derogation of any other law .—The provisions of this Act shall be in addition to and not
in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency,
the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the
inconsistency.
13
(2004) 1 SCC 305
14
(1996) 6 SCC 385
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15
Ltd v Arihant Threads Ltd , which was concerned with Section 34(2)
16
of the Recovery of Debts and Bankruptcy Act, 1993 , which read:
“ (2) The provisions of this Act or the rules made thereunder
shall be in addition to, and not in derogation of, the Industrial
Finance Corporation Act, 1948 (15 of 1948), the State Financial
Corporations Act, 1951 (63 of 1951), the Unit Trust of India Act,
1963 (52 of 1963), the Industrial Reconstruction Bank of India
Act, 1984 (62 of 1984), the Sick Industrial Companies (Special
Provisions) Act, 1985 (1 of 1986) and the Small Industries
Development Bank of India Act, 1989 (39 of 1989).”
Dealing with the effect of this sub-section the Supreme Court held, in
para 37 and 38 of the report, thus:
“37. The effect of sub-section (2) must necessarily be to preserve
the powers of the authorities under SICA and save the proceedings
from being overridden by the later Act i.e. the RDDB Act.
38. We, thus, find a harmonious scheme in relation to the
proceedings for reconstruction of the company under SICA, which
includes the reconstruction of debts and even the sale or lease of
the sick company's properties for the purpose, which may or may
not be a part of the security executed by the sick company in
favour of a bank or a financial institution on the one hand, and the
provisions of the RDDB Act, which deal with recovery of debts
due to banks or financial institutions, if necessary by enforcing the
security charged with the bank or financial institution, on the
other.”
(Emphasis supplied)
This enunciation of the law came to be followed, later, by the
Supreme Court in Pioneer Urban Land and Infrastructure Ltd v
17
UOI .
11.6 Jaspal Singh J., sitting singly as a Judge of this Court also
interpreted, with lucidity, the expression “in addition to not in
15
(2015) 1 SCC 166
16
“the RDDB Act” hereinafter
17
(2019) 8 SCC 416
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derogation of”, as contained in Section 34(2) of the RDDB Act,
18
thus :
“11. The answer to the question posed above, to my mind, is to
be found not in sections 17, 18 and 31 of the Act but in Section 34
and more particularly in its sub-section (2). This is how section 34
runs:
*
12. On reading sub-section (1) along with sub- section (2) what
emerges out is that notwithstanding the overriding effect of the
provisions of the Act over any other law to the extent of
inconsistency in the latter with the provisions of the former, the
Acts enumerated in sub-section (2) remain intact. The words: "The
provisions of this Act or the rules made there under shall be in
addition to and not in derogation of" the Industrial Finance
Corporation Act, 1948 are not without significance.
13. The term "in addition to", is synonymous with "also",
"moreover", "likewise", or "besides". The term, surely, cannot be
construed as meaning "in lieu of" and is rather diametrically
opposed to diminution or abatement or abridgment. In other words,
what the term "in addition to" signifies is an increase of or
accession to, and thus carries out the idea of protecting the reliefs
already available under section 30 of the Industrial Finance
Corporation Act, 1948. This, I feel, is further fortified by the words
"and not in derogation of, the Industrial Finance Corporation Act,
1948."
14. As we all know, the word "derogation" relates to the partial
repeal or abolishing of a law, as by a subsequent Act which limits
its scope or impairs its utility and force. In other words when we
say "in derogation of" we mean, more generally, the act of taking
away, or destroying the value or effect of anything, or of limiting
its extent, or of restraining its operation. If that be the meaning and
purport of the word "derogation", when section 34 uses the words
"and not in derogation of the Industrial Finance Corporation Act,
1948", it is clearly conveyed that the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 neither limits the scope
nor impairs the utility and force of the Industrial Finance
Corporation Act, 1948. And, the reason for it is not far to seek.
Section 30 of the Industrial Finance Corporation Act, 1948 confers
on the Corporation special rights to enable it to recover its dues
18
Industrial Finance Corporation of India v Allied International Products Ltd. and Ors.,
MANU/DE/1478/1997
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promptly and effectively, and without the necessity of resorting to
long drawn litigation requiring adjudication by judicial authorities
and which may harm the interest of the Corporation, frustrate its
rights, block its funds and make it difficult for it to freely invest
money.
15. In short, thus, section 34 of the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 keeps intact the
Industrial Finance Corporation Act, 1948 and in no way limits,
hinders or impairs the play of its provisions. This being the
position, the coming into force of the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 has no effect on the
pendency of the present proceedings. I hold accordingly.”
11.7 There can, therefore, be no manner of doubt that, by using the
expression “in addition to not in derogation of”, Section 42A of the
POCSO Act preserves, intact, the jurisdiction vested in any authority
under any other statute to try and offence which is triable under the
POCSO Act.
11.8 The question that arises is, therefore, whether the BSF Act
empowers the GSFC to try an offence under the POCSO Act.
11.9 On a reading of the BSF Act, the answer, quite clearly, has to be
in the affirmative.
19
11.10 Section 72 of the BSF Act empowers the GSFC to try any
person subject to the BSF Act for any offence punishable thereunder
and pass any sentence authorised thereby. “Offence” is defined in
20
Section 2(1)(q) of the BSF Act as “any act or omission punishable
under this Act” and includes “a civil offence”. “Civil offence” is
19
72. Powers of a General Security Force Court .—A General Security Force Court shall have the power to
try any person subject to this Act for any offence punishable thereunder and to pass any sentence authorised
thereby.
20
( q ) “offence” means any act or omission punishable under this Act and includes a civil offence;
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21
defined in Section 2(1)(d) as an offence triable by a Criminal Court.
In other words, every offence triable by a criminal Court is ipso facto
a “civil offence” for the purposes of the BSF Act; it would therefore
be an “offence” as defined in Section 2(1)(q) of the Act and,
consequently, a GSFC would have the jurisdiction to try any person
who alleged to have committed such an offence.
11.11 Clearly, therefore, the BSF Act empowers the GSFC to try
offences under the POCSO Act. These provisions, seen in conjunction
with Section 42A of the POCSO Act, which saves the jurisdiction
vested in other authorities under other statutes, defeats Mr. Singh’s
contention that the GSFC did not have the jurisdiction to try a POCSO
offence.
11.12 Section 32 of the POCSO Act has no application at all as it
deals with qualifications of Special Public Prosecutors.
12. Re. procedure followed by the GSFC
12.1 The second submission of Mr. Singh is that the petitioner was
not given certified copies of the statements of the PWs and was also
only allowed to inspect the file.
12.2 This, too, cannot constitute a legitimate basis to challenge the
22
decision of the GSFC in view of Rule 120 of the BSF Rules, which
21
( d ) “civil offence” means an offence which is triable by a criminal court;
22
120. Custody and Inspection of Proceedings .—The proceedings shall be deemed to be in the custody of
the Law Officer (if any) or, if there is none, of the presiding officer but may, with proper precaution for their
safety, be inspected by the members of the Court, the prosecutor and accused, at all reasonable times before
the Court is closed to consider the finding.
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only permits inspection of the records of the proceedings during the
23
trial. The entitlement to certified copies as per Rule 129 of the BSF
Rules is only after the trial has concluded.
12.3 Mr. Singh submits in this context that a learned Single Judge of
24
the High Court of Jammu & Kashmir has in Rovinder Singh v UOI ,
declared Rule 129 of the BSF Rule to be unconstitutional. However,
he fairly acknowledges that the said order stands stayed by a Division
Bench in LPA.
12.4 Moreover, unlike the position in Rovinder Singh, the petitioner
has not assailed the vires or validity of Rule 129 of the BSF Rules.
12.5 In that view of the matter, we cannot find any fault with the
GSFC in not allowing the petitioner certified copies of the statements
of the PWs during trial.
12.6 Even otherwise, if the petitioner was allowed to inspect the
copies of the said PWs, we do not feel that any prejudice can be said
to have resulted as a consequence of the petitioner not having been
provided certified copies.
12.7 In that view of the matter, Mr. Singh’s second contention,
predicated on the omission to provide certified copies of the
statements of the PWs to his client is also without substance.
23
129. Right of person tried to Copies of Proceedings .—Every person tried by a Security Force Court shall
be entitled to obtain on demand, at any time after the confirmation of the finding and sentence, when such
confirmation is required and before the proceedings are destroyed, from the Chief Law Officer a copy thereof,
including the proceedings upon revision, if any.
24
AIR 2022 J&K 105
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13. Re. plea that GSFC decision is unreasoned
13.1 The third submission of Mr. Singh is that the GSFC’s decision
is unreasoned. We have reproduced the relevant portion of the
decision of the GSFC hereinabove and, from a bare reading thereof, it
is clear that the GSFC has provided cogent and convincing reasons in
arriving at its finding.
13.2 Mr Singh’s submission that the GSFC decision is unreasoned is,
therefore, also rejected.
14. Inconsistencies in X’s statement
14.1 Mr Singh also advanced a faint contention that there were
inconsistencies in the statement of X. However, Ms. Dubey refers, in
25
response, to Ramani v State of Madhya Pradesh in which it has
been held that minor inconsistencies would not vitiate the case of the
26
prosecution. She has also relied on Section 29 of the POSCO Act
which engrafts a presumption of guilt against the accused unless
proved otherwise. We find the reliance, by Ms Dubey, on Section 29
of the POCSO Act to be well taken.
14.2 In the present case, we are in agreement with Ms. Dubey that
the various statements of the victim are cogent and convincing and,
25
( 1999) 8 SCC 649
26
29. Presumption as to certain offences .—Where a person is prosecuted for committing or abetting or
attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted or attempted to commit the offence, as the case may be
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therefore, if the GSFC chose to rely on the said statements read with
the available corroborating evidence in holding the petitioner to be
guilty of the offence alleged against him, we do not find any
perversity or illegality in the said finding.
15. Scope of judicial review
15.1 Besides, as Ms. Dubey points out, this Court does not sit in
appeal over the decision of the GSFC, and exercises only certiorari
jurisdiction. The parameters of certiorari jurisdiction can thus be
27
delineated in Syed Yakoob v K.S. Radhakrishnan :
“7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has been
frequently considered by this Court and the true legal position in
that behalf is no longer in doubt . A writ of certiorari can be issued
for correcting errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by inferior
courts or tribunals without jurisdiction, or is in excess of it, or as a
result of failure to exercise jurisdiction. A writ can similarly be
issued where in exercise of jurisdiction conferred on it, the Court
or Tribunal acts illegally or properly, as for instance, it decides a
question without giving an opportunity, be heard to the party
affected by the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court exercising it
is not entitled to act as an appellate Court. This limitation
necessarily means that findings of fact reached by the inferior
Court or Tribunal as result of the appreciation of evidence cannot
be reopened or questioned in writ proceedings. An error of law
which is apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may appear to be.
In regard to a finding of fact recorded by the Tribunal, a writ of
certiorari can be issued if it is shown that in recording the said
finding, the Tribunal had erroneously refused to admit admissible
and material evidence, or had erroneously admitted inadmissible
unless the contrary is proved.
27
AIR 1964 SC 477
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evidence which has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would be regarded as
an error of law which can be corrected by a writ of certiorari. In
dealing with this category of cases, however, we must always bear
in mind that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the ground
that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding are within
the exclusive jurisdiction of the Tribunal, and the said points
cannot be agitated before a writ Court. It is within these limits that
the jurisdiction conferred on the High Courts under Article 226 to
issue a writ of certiorari can be legitimately exercised ( vide Hari
28
Vishnu Kamath v Syed Ahmad Ishaque , Nagandra Nath Bora v
29
Commissioner of Hills Division and Appeals Assam
30
and Kaushalya Devi v Bachittar Singh .
8. It is, of course, not easy to define or adequately describe
what an error of law apparent on the face of the record means.
What can be corrected by a writ has to be an error of law; hut it
must be such an error of law as can be regarded as one which is
apparent on the face of the record. Where it is manifest or clear
that the conclusion of law recorded by an inferior Court or
Tribunal is based on an obvious mis-interpretation of the relevant
statutory provision, or sometimes in ignorance of it, or may be,
even in disregard of it, or is expressly founded on reasons which
are wrong in law, the said conclusion can be corrected by a writ of
certiorari. In all these cases, the impugned conclusion should be so
plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said
error of law is apparent on the face of the record . It may also be
that in some cases, the impugned error of law may not be obvious
or patent on the face of the record as such and the Court may need
an argument to discover the said error; but there can be no doubt
that what can be corrected by a writ of certiorari is an error of law
and the said error must, on the whole, be of such a character as
would satisfy the test that it is an error of law apparent on the face
of the record . If a statutory provision is reasonably capable of two
constructions and one construction has been adopted by the inferior
Court or Tribunal, its conclusion may not necessarily or always be
open to correction by a writ of certiorari. In our opinion, it is
neither possible nor desirable to attempt either to define or to
describe adequately all cases of errors which can be appropriately
described as errors of law apparent on the face of the record.
28
(1955) 1 SCR 1104
29
(1958) SCR 1240
30
AIR 1960 SC 1168
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Whether or not an impugned error is an error of law and an error of
law which is apparent on the face of the record, must always
depend upon the facts and circumstances of each case and upon the
nature and scope of the legal provision which is alleged to have
been misconstrued or contravened.”
(Emphasis supplied)
15.2 Division Benches of this Court have also spoken on the issue.
31
In Kailash Chand Dig v UOI , a Division Bench, of which one of us
(C. Hari Shankar J.) was a member, has held:
“33. The procedural framework under the BSF Act and Rules
has been duly adhered to at every stage. The petitioner has failed
to demonstrate any illegality, perversity, or procedural lapse
warranting interference by this Court in exercise of writ
jurisdiction. It is a settled position of law that findings of a court
martial or its equivalents like the GSFC are not to be interfered
with unless they are patently illegal or shock the conscience of the
court. No such exceptional circumstance is made out in the
present case.”
15.3 Similar views stand expressed by this Bench in Sheelendra
32 33
Kumar v UOI and Kiran Kumar v UOI and by a coordinate
34
Division Bench in SI/Steno Digamber Singh v UOI .
Conclusion
16. We, therefore, find no occasion to interfere with the impugned
decision of the GSFC, which accordingly stands affirmed in its
entirety.
31
2025 SCC OnLine Del 2500
32
2025 SCC OnLine Del 5420
33
Judgment dated 25.07.2025 in W.P.(C) 6319/2023
34
2025 SCC OnLine Del 3981
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17. The writ petition is therefore dismissed.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
AUGUST 28, 2025 /yg
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