Delhi High Court
Prema Ram Ex Bsf Constable vs Uoi & Ors. on 5 March, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18.12.2024
Pronounced on: 05.03.2025
+ W.P.(C) 10858/2009
PREMA RAM EX BSF CONSTABLE .....Petitioner
Through: Mr. Ankur Chhibber, Adv.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Mukul Singh, CGSC with
Ms. Ira Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
SHALINDER KAUR, J.
1. The present petition has been filed by the petitioner under
Article 226 of the Constitution of India, assailing the Order dated
30.09.2008 passed by the Commandant of the 105th Battalion (Bn.),
Border Security Force (BSF) vide which the petitioner was dismissed
from Service. He has also assailed the Order dated 22.04.2009 passed
by the Director General (DG), BSF, rejecting his Statutory Petition
under Section 117(2) of the BSF Act, 1968 (in short, „the BSF Act‟).
2. The brief facts leading to the filing of the present petition are
that the petitioner joined the BSF as a Constable (General Duty) on
22.10.1990, and upon successful completion of his basic training, he
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reported to the 105th Bn., BSF, on 03.11.1991. Initially, the petitioner
was posted in ‘B’ Company, 105th Bn.,BSF and in June,2008, the said
Company was deployed at BSF post Asharidah in the State of West
Bengal.
3. On 25.06.2008, the Coy Commander of „G‟ Coy detailed the
petitioner to purchase coal and fresh vegetables from the
Bhagwangola Market for the Border Out Post (BOP), Other Ranks‟
Mess, Kanapara. It is the claim of the respondents that the petitioner
left the BOP Kanapara along with Constable Mir Rahim at around
0815 hrs., and while they were on their way, the petitioner parted
ways with the Constable Mir Rahim and proceeded alone, thereby
violating the administrative instructions dated 10.05.2007, which
required the movement of the Unit personnel in pairs, especially
outside the BOP.
4. During the course of the said day, the petitioner was
apprehended by the Deputy Commandant (DC)(G)/VIG team of the
Sector Headquarter Berhampore, which consisted of Sub-Inspector
(SI)(G) Abhay Kumar, Inspector/VigN.B.Bhatt and Sh.Antaryami
Kumar DC(G), in a General Store named Tara Store. He was found to
be in possession of Rs. 27,550/- in cash and a pay-in-slip bearing the
name of Sada Sukh as a payee in SBI Account bearing No.
3003264422, which belongs to Om Prakash Ola. The petitioner was,
thereafter, produced before the Deputy Inspector General (DIG),
Berhampore, where the petitioner allegedly confessed that he had
received the said amount from the Cattle Smugglers as a gratification
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in exchange for providing a safe passage for smuggling of the Cattle
to Bangladesh, and that other constables from ‘G’ Coy were also
involved in this act. The DC (G)/VIG team then handed over the
petitioner, along with recovered amount and pay-in-slip, to the
Commandant 105th Bn., BSF.
5. The hearing of Charge commenced on 26.06.2008 wherein, the
petitioner was heard by the Officiating Commandant under Rule 45 of
the BSF Rules, and Masood Mohd, DC as well as HC SK Bhandari
were examined. During this hearing, the petitioner pleaded guilty to
the Charges leveled against him. Subsequent thereto, on 28.06.2008,
the Officiating Commandant of 105th Bn., issued a Charge-Sheet to
the petitioner for having committed offences under Section 40 and 46
of the BSF Act, 1968. The Charge-Sheet listed four Charges, which
are reproduced as under:-
"FIRST COMMUTING A CIVIL OFFENCE
CHARGE THAT IS TO SAY BEING A PUBLIC
BSF ACT-1958 SERVANT ACCEPTING
SECTION-46 GRATIFICATION OTHER THAN
LEGAL, REMUNERATION FOR
FOREBEARING TO DO AN
OFFICIAL ACT, PUNISHABLE
UNDER SECTION 07 PREVENTION
OF CORRUPTION ACT.
In that he,
At Jiyaganj (WB) on 25.06.08 at about
1240 hrs was in possession of Rs.27,550/-
which he accepted as gratification, other
than legal remuneration as a motive for
forbearing to do an official act, allowing
a safe passage (Line) for 10 to 15 days for
the purpose of smuggling of cattle @
Rs.5000/- per pair.
Signature Not Verified Digitally Signed By:NEELAM W.P.(C) 10858/2009 Signing Date:05.03.2025 Page 3 of 21 20:38:43 SECOND AN OMISSION PREJUDICIAL TO CHARGE GOOD ORDER AND DISCIPLINE OF BSF ACT-1968 THE FORCE SECTION-40 In that he, at Jiyaganj at 1210 hrs on 25.5.08 was
found in possession of rs.27,550/- which
he could not satisfactory account for and
the same is against the unit
SOP/Instruction.
THIRD AN OMISSION PREJUDICIAL TO
CHARGE GOOD ORDER AND DISCIPLINE OF
BSF ACT-1968 THE FORCE
SECTION-40
In that he,
at Jiyaganj at 1210 hrs. on 25.6.08 had
gone alone to purchase coal & fresh
vegetable of BOP hunger against the
instruction that men must move in buddy
pair.
FOURTH AN OMISSION PREJUDICIAL TO
CHARGE GOOD ORDER AND DISCIPLINE OF
BSF ACT-1968 THE FORCE
SECTION-40
In that he,
at Jiyaganj at 1210 hrs on 25.6.08, was
found in possession of mobile phone
(Modle Nokia-3110) against the
instructions of 105 BN BSF)."
6. Incidental to this, in order to record the evidence, vide the Order
dated 28.06.2008, DC A.K. Hotkar was detailed by the Officiating
Commandant to prepare the Record of Evidence (ROE). The
preparation of the ROE against the petitioner commenced on
01.07.2008 and the same concluded on 04.07.2008.
7. Thereafter, the DIG, BSF, Berhampore, perused the ROE
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proceedings and directed that the fourth Charge framed under Section
40 of the BSF Act be dropped. Charge 1 was amended and was
merged with Charge 2 to form a new charge under Section 46 of the
BSF Act. Following the said changes, with amended Charges, a fresh
Charge-Sheet was issued on 24.09.2008. The amended charges have
been reproduced as under:-
“FIRST COMMITTING A CIVIL OFFENCE
CHARGE THAT IS TO SAY CRIMINAL
BSF ACT – MISCONDUCT FOR HAVING BEEN
1968 AS PUBLIC SERVANT IN
SECTION POSSESSION OF PECUNIARY
46 RESOURCES DISPROPORTIONATE
TO HIS KNOWN SOURCE OF
INCOME FOR WHICH HE CANNOT
SATISFACTORILY ACCOUNT FOR
AN OFFENCE SPECIFIED IN
SECTION 13 (1) (e) OF THE
PREVENTION OF CORRUPTION
ACT, 1988 PUNISHABLE UNDER
SECTION 13 (2) OF THE SAID ACT
In that he,
at Jiyaganj, Distt- Murshidabad, West
Bengal on 25/06/08 at about 1210 hrs
was found in possession of Rs. 27,550/-
(Rupees twenty seven thousand five
hundred fifty) only which he accepted
from smugglers by allowing a safe
passage (line) for smuggling of cattle
heads from India to Bangladesh in AOR
@ Rs. 5,000/- per pair. The said amount
is disproportionate to his known source
of income, which he could not
satisfactorily account for.
SECOND AN OMMISSION PREJUDICIAL TO
CHARGE GOOD ORDER AND DISCIPLINE OF
BSF ACT - THE FORCE
1968 In that he,
SECTION- At Jiyaganj at 1210 hrs on 25/06/08 had
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40 gone alone to purchase coal & fresh
vegetable for BOP Ors‟ Mess against the
SOP/Instructions issued to Coys vide this
officer order No. Ops/105
Bn/SOP/2007/4960-5009 dated 10/05/07
that men must move in buddy pair.”
8. On 27.09.2008, the petitioner was directed to nominate his
defence witness by 28.09.2008, as the trial by Summary Security
Force Court (SSFC) was scheduled to commence from 29.09.2008.
The petitioner gave the name of SI Vijaya Yada as his defence
witness.
9. In response to a separate correspondence dated 27.09.2008
calling upon the petitioner to appoint a Friend of the Accused, the
Petitioner requested for appointment of Deputy Commandant R.K.
Yadav as a Friend of the Accused.
10. The petitioner was, thereafter, tried by the SSFC on 29.09.2008
and 30.09.2008, in which the SSFC recorded that the petitioner has
pleaded “Guilty” to the Charges. After recording the statement of the
petitioner and his witness, SI Vijay Bahadur Singh, as to the character
of the petitioner, the SSFC awarded to the petitioner a punishment of
„Dismissal from Service‟, vide the Order dated 30.09.2008, which was
counter-signed by the DIG on 14.11.2008.
11. The petitioner, being aggrieved by the said action, filed a
Statutory Petition under Section 117(2) of the BSF Act, on
23.01.2009, before the DG, BSF challenging the dismissal Order. The
said petition was dismissed vide the Order dated 22.04.2009.
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12. Dissatisfied with the dismissal of the Statutory Petition, the
petitioner has approached this Court challenging the dismissal Order
as well as the Order dated 22.04.2009 of the DG, BSF.
SUBMISSIONS OF THE PETITIONER
13. Mr. Ankur Chhibber, the learned counsel for the petitioner
submitted that there was a jurisdictional error in the Trial as the DIG,
being a witness due to the purported confession of the petitioner when
he was produced before him, was disqualified from directing the Trial
by the SSFC, and his subsequently approving the findings and
punishment was also improper. He contended that according to Rule
46 of the BSF Rules, 1969 (in short, „the BSF Rules‟), the petitioner
should have been attached to another Unit under a different DIG for a
fair Trial. As a result, the proceedings were vitiated.
14. He further submitted that no pre-trial hearing under Rule 45 of
the BSF Rules was provided on the amended Charges in the Charge-
Sheet. Furthermore, the Detailed Report, as mentioned in proceedings,
was not supplied to petitioner. Consequently, the subsequent
proceedings under Rule 48 of the BSF Rules are also untenable in law.
15. The learned counsel contended that no prima facie case was
established under Rule 51 of the BSF Rules warranting a trial by the
SSFC, since no evidence was presented to demonstrate that the
recovered money was disproportionate to the petitioner‟s source of
income, and the respondents have failed to show any administrative
instructions requiring troops to move in pairs.
16. He contended that the “Plea of Guilty” was not properly
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recorded, as the petitioner did not plead “Guilty”; in fact, he pleaded
“Not Guilty”. This, he submitted, is evident from the fact that the
petitioner sought to have SI Vijay Yadav examined as a defence
witness and had submitted an application in this record. Additionally,
the petitioner did not sign the “Plea of Guilty”. Therefore, the SSFC
should have followed the procedure for a plea of “Not Guilty” under
Rule 145 of the BSF Rules, instead of proceeding under Rule 142 of
the BSF Rules alleging the petitioner to have pleaded “Guilty”. He
submitted that the petition‟s signature should have been obtained on
the alleged “Plea of Guilty”. In support of his contentions, he relied on
the following Judgments-
Union of India and Ors. vs. Jogeshwar Swain, (2023) 9 SCC
720;
Jai Pal vs. UOI and Ors., 2024 SCC OnLine Del 5625;
Ex-HC D.K. Dwivedi vs. Union of India and Ors., 2024 SCC
OnLineDel 5982;
Devender Kumar vs. Union of India and Ors., 2012 SCC
OnLineDel 2807;
Ex. Head Constable Rajinder Singh vs. Union of India and
Ors., 2012 SCC OnLineDel 2574; and
Mahender Singh (Ex. Const) vs. Union of India and Ors.,
2008 (104) DRJ 749(DB).
17. In addition to the aforementioned Judgments, he placed reliance
on the decision of Ram Paul vs. Union of India and Anr., 2005 (83)
DRJ 718 (DB), and submitted that due to lack of evidence, there was
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no basis for conviction of the petitioner.
18. To complete the submissions, he urged that the DG, BSF
rejected the Statutory Petition of the petitioner in a mechanical
manner and without noticing the illegalities or defects in the said
proceedings.
19. He, therefore, prayed that the writ petition be allowed and
respondents be directed to reinstate the petitioner with all
consequential benefits.
SUBMISSION OF THE RESPONDENTS
20. On the other hand, Mr. Mukul Singh, the learned Central
Government Standing Counsel for the respondents, while supporting
the Impugned Orders, submitted that the DIG was neither a witness
nor an interested party in the instant case. The petitioner was produced
before him as he was the Area Commander of Sector Berhampore.
Thus, there was no jurisdictional error in holding the trial against the
petitioner.
21. He submitted that the petitioner was caught red-handed with Rs.
27,550/- cash by the raiding party, coupled with his confession, which
was voluntary, which established the prima facie case against the
petitioner, and the Charges were framed only after preparing a
detailed ROE.
22. He submitted that the procedure as required by the BSF Act and
the BSF Rules was duly followed. The petitioner was given an
opportunity to be heard by the Commandant on the Offence Report
and further, the petitioner had sufficient opportunities to cross-
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examine the witnesses. He was also given an opportunity to make a
defence statement however, he chose not to. This, he submitted,
indicates that the proceedings were conducted fairly.
23. Furthermore, he contended that following the amendment of the
Charges, a revised Charge-Sheet was issued, wherein, the main
content of the Charges and the Charge-Sheet remained unchanged.
24. Additionally, he contended that the petitioner was provided
with the copies of all necessary documents, such as the ROE
proceedings and the Charge-Sheet, well before the commencement of
the SSFC trial, in accordance with the provisions of the BSF Act and
the BSF Rules.
25. The learned counsel contended that the petitioner pleaded
“Guilty” and as a result, the procedure under Rule 142 of the BSF
Rules was adopted, rather than Rule 145. Moreover, there was no
requirement under the BSF Act and the BSF Rules for an accused
person to sign the SSFC proceedings after pleading “Guilty” or “Not
Guilty”, and therefore, his signature on his “Plea of Guilty” was not
obtained.
26. The learned counsel, referring to paragraph 19 of the “STD
Operating Procedure 105 Bn. BSF regarding Financial/General
Matters at BN HQ/BOPS”, submitted that the same required the
troops to move in pairs outside the BOP, thus, the petitioner‟s plea,
that there were no administrative requirements in this regard, is
baseless.
27. To conclude, he submitted that the DG, BSF rejected the
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petitioner‟s Statutory Petition under Section 117(2) of the BSF Act as
being devoid of any merit, after giving the same a thoughtful
consideration and after carefully reviewing the entire submissions
made by him. In support of his contentions, he placed reliance on Som
Dutt vs. Union of India, 2012 SCC OnLine Del 2575.
ANALYSIS AND FINDINGS
28. We have heard the learned counsels for the parties and perused
the record as well as the original record of the SSFC proceedings
produced before us by the respondents.
29. Before delving into the merits of the submissions of the parties,
it is important to note that while exercising powers under Article 226
of the Constitution of India, the Court should generally refrain from
re-appreciating the evidence presented in the departmental
proceedings. The role of the Court is not that of an Appellate
Authority, tasked with re-examining or re-assessing the evidence to
draw its own conclusions. However, the Court may intervene in the
findings of departmental proceedings if it is evident that no reasonable
person could have arrived at such conclusion, or if the proceedings are
found to be inconsistent with the established rules or principles of
natural justice.
30. A Co-ordinate Bench of this Court in Som Dutt (supra), while
considering the issue of proceedings and dismissal by the SSFC,
examined the question regarding jurisdiction of this Court under
Article 226 of the Constitution of India in such a service matter, and
held as under:-
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“19. This cannot be disputed that this Court will not
take over the functions of the Summary Security Force
Court. The writ petition is not an appeal against the
findings of SSFC nor is this court exercising or
assuming the role of the Appellate Authority. It cannot
interfere with the findings of the fact arrived at by the
SSFC except in the case of malafides or perversity i.e
where there is no evidence to support a finding or
where the finding is such that no one acting reasonably
or with objectivity could have arrived at or where a
reasonable opportunity has not been given to the
accused to defend himself or it is a case where there
has been non application of mind on the part of the
SSFC or if the charges are vague or if the punishment
imposed is shocking to the conscience of the Court.
Reliance in respect of jurisdiction of the High Court in
exercise of its jurisdiction under Article 226 of the
Constitution of India has been placed on State of
U.P v. Raj Kishore Yadav, (2006) 5 SCC 673; V.
Ramana v. A.P. SRTC, (2005) 7 SCC 338; R.S.
Saini v. State of Punjab, JT 1999 (6) SC 507; Kuldeep
Singh v. The Commissioner of Police, JT 1998 (8) SC
603; B.C. Chaturvedi v. Union of India, AIR 1996 SC
484; Transport Commissioner, Madras-5 v. A. Radha
Krishna Moorthy, (1995) 1 SCC 332; Government of
Tamil Nadu v. A. Rajapandia, AIR 1995 SC 561; Union
of India v. Upendra Singh, (1994) 3 SCC 357 and State
of Orissa v. Murlidhar Jena, AIR 1963 sc 404.”
31. Having noted the jurisdiction of this Court under Article 226 of
the Constitution of India, we may now deal with the main grievance of
the petitioner that he did not plead “Guilty” before the SSFC,
therefore, the “Plea of Guilty” does not bear his signatures. Per
contra, the learned counsel for the respondents contended that from a
perusal of the record, it is clear that the petitioner had pleaded
“Guilty”, and as at the relevant time, there was no requirement under
the BSF Act and the BSF Rules that the “Plea of Guilty” has to be
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signed by the accused, thus, such signatures were not appended.
32. In this regard, it would be apposite to note the Rule 142(2) of
the BSF Rules, as it stood before 25.11.2011, as it dealt with the
manner in which the SSFC is required to record the “Plea of Guilty”.
The same reads as under:
“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.”
33. A bare perusal of Sub-rule (2) of Rule 142 would indicate that it
lays down an elaborate procedure for recording of the “Plea of Guilty”
or “Not Guilty”. The provision mandates that the SSFC, before it
records its findings of “Plea of Guilty”, must ascertain whether the
accused understands the nature and meaning of the Charges to which
he pleads “Guilty”, and that, he must be informed of the general effect
of that “Plea of Guilty” and the difference in procedure that will
follow. Further, if it is apparent from the record or the abstract of
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the SSFC is required to advise the accused to withdraw that plea and
proceed to record a plea of “Not Guilty” instead.
34. At the time when the SSFC proceedings in the present case
were conducted, that is, on 29.09.2008, the Proviso to the Rule 142(2)
of the BSF Rules, which required the SSFC to obtain signatures of the
accused and the friend of accused, was not in force. This Proviso was
added with effect from 25.11.2011.
35. The learned counsel for the petitioner, while placing reliance on
the Judgments of Jogeshwar Swain (supra), Jai Pal (supra),Ex-HC D
K Dwivedi (supra), Devender Kumar(supra), Ex. Head Constable
Rajinder Singh (supra) and Mahender Singh (Ex. Const) (supra),
however,vehemently submitted that even though the Proviso to Rule
142(2) of BSF Rules did not exist at the time when the SSFC was
held, the Commandant should have obtained the signatures of the
petitioner on the alleged “Plea of Guilty” to authenticate that the
petitioner had acknowledged the said “Plea of Guilty”.
36. In this context, let us examine the Judgments referred to on
behalf of the petitioner. The Supreme Court examined the subject of
the absence of the signatures of the accused on the “Plea of Guilty”
when the Proviso to Section 142(2) of the BSF Rules did not exist, in
its decision of Jogeshwar Swain (supra), the relevant extracts thereof
are reproduced as under:
“42. 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
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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 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.
43. Reverting to the facts of this case, we notice
from the record that the minutes of the proceedings
of the SSFC dated 23-7-2005 do not indicate as to
what advice was rendered to the accused with
regard to the general effect of the plea of guilty
taken by him. The minutes dated 23-7-2005 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
requirements of sub-rule (2) of Rule 142 of the BSF
Rules, 1969.
44. 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
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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 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.”
(emphasis supplied)
37. From a reading of the aforementioned decision, it is clear that
even though there was no requirement of such a “Plea of Guilty” to be
signed by an accused before the insertion of the Proviso to Sub-Rule
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(2) of Rule 142, the absence of the signature of the accused remains
significant. The absence of the accused‟s signature on the “Plea of
Guilty” calls into question whether the procedural safeguards were
effectively followed in the Trial.
38. Further, this Court in its decision in Jai Pal (supra), while
dealing with a similar issue, has held as under:
“29. Furthermore and most importantly, the
proceedings only bear the signatures of the
Commandant and none else. The „plea of guilty‟ does
not bear the signatures either of the petitioner or his
friend appointed by the respondents meaning thereby
that the plea taken by the petitioner has not been
acknowledged by him.
30. No doubt, the Commandant has observed
underneath the „plea of guilty‟ that he has followed
the procedure under Section 142(2), however, a
verbatim reiteration of statutory rules made by the
Commandant without any indication of the manner as
to how the petitioner was explained about the
consequences of pleading guilty, cannot be said to be
in due compliance of Sub-Rule 2 of Rule 142 of BSF
Rules.
31. In our view, merely saying or noting in the
proceedings that Rule 142 has been followed is not
sufficient. The statutory rule requires that the Court
has to essentially explain to the accused the nature
of the Charge and to warn him of the consequences
and effect of plea of guilt. The accused himself must
be made aware that a different procedure will be
followed if he pleads guilty and about the
punishments laid under the Act that could be awarded
to him. It is only upon his understanding of the
content of the Charge and the effect of recording of
plea of guilty and also being aware of a different
procedure that shall consequently follow upon
recording of such plea, it can be inferred that the
petitioner voluntarily pleads guilty to the Charges and
thereafter such a plea should be recorded.”
(emphasis supplied)
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39. Similarly in Ex-HC D K Dwivedi (supra), Devender
Kumar(supra), Ex. Head Constable Rajinder Singh (supra) and
Mahender Singh (Ex. Const) (supra), this Court has consistently held
that strict compliance of Rule 142(2) of the BSF Rules is essential,
and when non-compliance thereof is apparent, the trial is held to be
vitiated.
40. In the present case, as would be manifest from the record, the
“Plea of Guilty” has not been signed by the petitioner or his Next
Friend; the same bears only the signature of the Commandant, who
has noted on the proceeding sheet as under:
“The accused having pleaded guilty to both the
charges, the court read and explained to the accused
the meaning of both the charges to which he has
pleaded guilty and ascertains that the accused
understands the nature of the charges to which he has
pleaded guilty. The court also informs the accused the
general effect of that plea and the difference in
procedure which will be followed consequent to the
said plea. The court satisfies itself that the accused
understands the charges and the effect of that plea
and the difference in procedure which will be
followed consequent to the said plea. The Court
satisfies itself that the accused understands the
charges and effect to his plea of guilty to the charges
and the effect of his plea of guilty to the charges
particularly the difference in procedure. The
provisions of Rule 142(2) are complied with.”
41. From the above noting, it is evident that the SSFC has merely
recorded in the proceedings that Rule 142(2) of the BSF Act has been
complied with, which is a verbatim reiteration of the statutory rule
without any indication as to how the petitioner was explained about
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the consequences of pleading ‘Guilty’ and the difference in procedure
that would follow as a result of such plea.Thus, this will not suffice
the requirement of the said Rule, given the serious consequences that
would follow after such a plea. At this stage, it is pertinent to mention
that the implication of pleading “Not Guilty” in the SSFC trial would
have resulted in adoption of the procedure prescribed under Rule 145
of the BSF Rules and resultantly, the petitioner herein would have had
the opportunity of having another round of recording of the
prosecution‟s evidence
42. Further, upon reviewing the original record of SSFC
proceedings, it is clear that the petitioner had nominated SI Vijay
Yadav as a defence witness before the SSFC. It is surprising that the
petitioner, who initially nominated a defence witness, would proceed
to plead ‘Guilty’ on the day of the trial, despite knowing and
understanding the procedural differences that would follow as a
consequence of him pleading “Guilty”.
43. Even the deposition of character witness as well as the
statement of the petitioner in mitigation of punishment do not bear
their signatures and on the other hand, it is recorded that they have
stated that they do not want their statements to be read over to them
and believe that it has been taken down correctly. This casts a serious
doubt on the authenticity of the entire SSFC proceedings. We may
quote from the SSFC proceedings the statement of the character
witness and the statement of the petitioner in mitigation of
punishment, which is as under:
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“CHARACTER WITNESS::SI Vijay Bahadur Singh
xxxx
The witness does not want the statement to be read
over to him and believes that it has been taken down
correctly.
The provision of BSF Rule 89 and 90 have been
complied with.”
xxx
“The accused does not want the statement to be read
over to him and believes that It has been taken down
correctly.
The provisions of BSF Rule 89 & 90 have been
complied with.”
44. From what has been noted hereinabove, it is clear that the
proceedings of the SSFC, held on 29.09.2008 and 30.09.2008,
transgressed the procedural safeguards as laid down in Rule 142 of the
BSF Rules. The fact that the petitioner had nominated a defence
witness, coupled with the fact that the proceedings recording the “Plea
of Guilty” bear only the signature of the Commandant and none else,
and that it contains a verbatim reiteration of the statutory rule as
opposed to a detailed explaination about the consequences of pleading
‘Guilty’, casts serious aspersions on the “Plea of Guilty” recorded by
the SSFC on whether the petitioner was fully conscious of the
ramifications of such plea, especially when he has specifically
challenged having made such a plea before the SSFC. The petitioner‟s
expidious opposition to his „Dismissal from Service‟, in the form of a
Statutory Petition followed by the present petition against the
Impugned Order thereof, further adds to the belief of this Court that
the SSFC proceedings wrongly recorded petitioner‟s plea of „Guilty‟
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and denied him a fair chance of defending himself. Considering the
punishment of „Dismissal from the Service‟awarded to the petitioner,
the prescribed rules were required to be strictly followed.
45. We, accordingly, allow the writ petition and set aside the SSFC
proceedings and the sentence imposed on the petitioner.
Consequently, we direct that the petitioner be reinstated in service
with effect from, the date of his „Dismissal from Service‟, that is,
30.09.2008, with all consequential benefits. However, given the fact
that the petitioner had been in service for almost 17 years and nothing
adverse regarding his past service has been brought on record, and the
fact that the he has been out of service for almost 17 years, and it has
not been shown to us that the petitioner was not gainfully employed or
worked for gain during the intervening period, we direct that the
petitioner be paid 50% of the back wages as arrears from the date of
the petitioner‟s dismissal until today. The consequential orders in
terms of this Judgement will be passed by the respondents within a
period of 8 weeks.
46. The present petition is, accordingly, disposed of in above-said
terms. The parties shall bear their own costs.
47. The original records of the inquiry proceedings are directed to
be returned to the respondent/department by the Court Master.
SHALINDER KAUR, J.
NAVIN CHAWLA, J.
MARCH 05, 2025/ab/sk
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By:NEELAM
W.P.(C) 10858/2009
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