Delhi High Court
Kiran Kumar vs Union Of India & Anr. & Ors on 25 July, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6319/2023 & CM APPL. 24814/2023
KIRAN KUMAR .....Petitioner
Through: Mr. Tarun Rana, Mr. Rakesh
Kumar Singh, Mrs. Reena Gupta and Mr.
Sahir Gahlot, Advs.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Pratima N. Lakra, CGSC
along with Mr. Chandan Prajapati & Mr.
Shailendra Kumar Mishra, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT (ORAL)
% 25.07.2025
OM PRAKASH SHUKLA, J.
[The name of the complainant and her mother has been anonymized,
for obvious reasons.]
1. The petitioner has filed the present petition assailing his
dismissal from service and conviction under Section 376 and Section
468 of the Indian Penal Code, 18601 by the General Security Force
Court2 constituted under the Border Security Force Act, 19673,
wherein initially he was sentenced to undergo rigorous imprisonment
for a period of two years. However, subsequently on revision by the
1
“IPC“, hereinafter
2
“GSFC”, hereinafter
3
“BSF Act“, hereinafter
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GSFC, the sentence was enhanced to rigorous imprisonment for a
period of 10 years.
2. Shorn off unnecessary details, the facts as noted from the
petition would be that the petitioner, an Ex Constable (GD) bearing
No. 021215166 was enrolled in the Border Security Force4 on 1st June,
2002 as Constable (GD) and after completion of his basic training
(BRT) from BTC and BSF Hazaribagh, he joined 162 Battalion, BSF
since 27th August, 2003, which had its headquarters at Thrissur,
Kerala.
3. As per the substratum of the matter, while the petitioner was
deployed under the Frontier Headquarter, BSF, Odisha, a complaint
came to be filed by one *****, Mahila Constable 184 Battalion, BSF,
(attached with SHQ, BSF, Trivandrum)5. The contents of the
complaint alleged that on 26th November 2019, the petitioner, who at
that point of time was deployed for campus security duty at SHQ BSF
Trivandrum, had established physical relationship with the
complainant by giving her false promises of marriage, while she was
working as an Assistant in Establishment Branch of SHQ BSF
Trivandrum.
4. As per the complaint, the petitioner, although married, provided
a fabricated death certificate of his wife namely Smt. Nisha Verma to
the complainant in furtherance of the said relationship. It is alleged
that both of them spent a night together in a hotel at Kovalam (Kerala)
and engaged in consensual sexual activities on 27th November, 2019
4
“BSF”, hereinafter
5
“Complainant”, hereinafter
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and 12th October, 2019. Further, allegations of harassment, blackmail
and threats of morphing of pictures were also made in the said
complaint against the petitioner.
5. Although, the aforesaid complaint was initially inquired into by
the Sexual Harassment Inquiry Committee of Sector HQ, BSF,
Trivandrum, however, the Committee after conducting inquiry found
that the incident did not constitute to be a case of sexual harassment of
a woman at workplace and rather was a case of cheating on false
promise of marriage as well as of cybercrime. Accordingly, the
Committee recommended that the case either be transferred to a Cyber
Cell to ascertain facts and suggest disciplinary actions against the
petitioner or be transferred to the administrative authority which may
take appropriate actions as it deemed fit. Apparently, the said inquiry
proceedings were finalized with the remarks of the Inspector General,
Odisha Frontier, BSF on 6th May, 2020 and as per his final remarks,
the petitioner was found to have been indulged in cheating, forgery
and extra-marital affair with a woman employee of the force, which
tantamounts to an offence for which he was liable for disciplinary
actions under the BSF Act and Rules.
6. Thus, the complaint came to be inquired into by a Court of
Inquiry6 constituted by the Commandant of 162 BN BSF vide an order
dated 25th August, 2020 and on the basis of the opinion of the COI
dated 8th October, 2020, disciplinary action was initiated against the
petitioner under Section 45 of the Border Security Force Rules, 19697.
Subsequently, the Commandant vide an order dated 11th December
6
“COI”, hereinafter
7
“BSF Rules”, hereinafter
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2020, remanded the petitioner for preparation of Record of Evidence8,
in accordance with the Rule 48 of the BSF Rules and charges under
Sections 376, 463 and 468 of the IPC. Apparently, on advice of the
Law Branch, Frontier Headquarter HQ (Spl Ops), BSF, Bangalore an
Additional ROE was also prepared and after due consideration of the
case, an application under Rule 52 of the BSF Rules was submitted to
Frontier Headquarter (Special Ops), Odisha through SHQ BSF,
Trivandrum to convene Security Force for the trial of the petitioner.
7. Records reveal that the ROE was followed by convening order
dated 1st June, 2022, for holding GSFC against the petitioner with
effect from 9th June, 2022 on the following two charges:
First Charge COMMITTING A CIVIL OFFENCE, THAT IS
BSF Act-1968 TO SAY RAPE PUNISHABLE U/S 376 OF IPC
Section-46
In that he,
at Kovalam on 27.09.2019 and 13.10.2019, had
sexual intercourse with ***** CT (Mahila) of 184
Bn BSF, attached with SHQ BSF Trivandrum by
giving false promise to marry her.
Second Charge COMMITTING A CIVIL OFFENCE THAT IS
BSF Act, 1968 TO SAY FORGERY FOR PURPOSE OF
Section- 46 CHEATING PUNISHABLE U/S 468 OF IPC.
In that he,
at SHQ BSF Trivandrum during the month of
Sept/Oct 2019, made himself a false/forged Death
Certificate of his wife, namely Smt. Nisha Verma
with intend to cheat ***** CT (Mahila) of 184 Bn
BSF (attached with SHQ BSF Trivandrum) by
showing himself as a widower.
8. The petitioner was tried on both the aforesaid charges and in the
said GSFC trial, on being arraigned by the charges, the petitioner
8
“ROE”, hereinafter
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pleaded „Not Guilty‟ to the charges. Thus, in order to prove their case,
the prosecution examined 11 witnesses and after a perusal of the
evidence on record, the GSFC found the petitioner guilty of both the
charges and as such convicted him under Section 376 and Section 468
of the IPC, and as such vide an order dated 29th June, 2022, the
petitioner was dismissed from service and sentenced to two years‟
rigorous imprisonment under Section 46 of BSF Act.
9. In the intervening period, a writ petition being W.P.(C)
13066/2021 came to be filed by the petitioner, which was
subsequently withdrawn vide an order dated 6th July, 2022, with
liberty to avail remedies as available to him as per law, thereinafter the
petitioner preferred a representation before the IG, BSF, FHQ Frontier
Headquarter Bangalore. Subsequently, the petitioner preferred a pre-
confirmation petition under Rule 142 of the BSF Rules dated 20th
August, 2022, challenging the findings of the GSFC.
10. The petitioner, again preferred a second writ petition being
W.P.(C) 13342/2022 for time bound adjudication of the aforesaid
statutory petition, wherein vide an order dated 14th September 2022,
this Court directed the respondents to decide the statutory petition
within a period of six weeks. Thereafter, the GSFC revised its
sentence in accordance with the directions of the confirming authority,
and by order dated 28th November, 2022, sentence which was imposed
of the petitioner for two years was enhanced to ten years‟ rigorous
imprisonment.
11. The petitioner preferred another petition dated 28th December
2022 under Section 117(1) of the BSF Act r/w Rule 167 of the BSF
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Rules against the aforesaid order of the GSFC passed in revision trial
and subsequently, also filed a 3rd Writ Petition being W.P.(C)
497/2023 for time bound adjudication of the aforesaid statutory
petition, wherein vide an order dated 17th January, 2023, this Court
directed the respondents to decide the statutory petition within a
period of six weeks.
12. In the meantime, the pre-confirmation petition came to be
dismissed by the confirming authority on 17 th February 2023, wherein
the findings and sentence were confirmed by the competent authority
by giving an observation that the findings of the GSFC are based upon
evidence on record and the sentence awarded is legal and
commensurate with gravity of offence. Accordingly, the petitioner
preferred a post-confirmation statutory petition dated 7th March, 2023
under Section 117(2) of the BSF Act read with Rule 167 of the BSF
Rules.
13. The petitioner also preferred a petition dated 7th March, 2023
under Section 130 of the BSF Act for suspension of sentence.
However, during the pendency of the aforesaid petitions, the Petitioner
again preferred a writ petition being W.P.(C) 3786/2023 for time
bound adjudication of the aforesaid statutory petition, wherein vide an
order dated 24th March, 2023, this Court directed the Respondents to
decide the statutory petition within a period of four weeks.
14. In view of the directions of this Court, the Director General9,
BSF, vide an order dated 12th April, 2023, rejected the aforesaid
statutory decision being devoid of merits.
9
“DG”, hereinafter
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15. Thus, dissatisfied by the order passed by the DG and the other
orders as enumerated herein below, the petitioner has filed the present
writ petition under Article 226 of the Constitution of India,
challenging and seeking setting aside of the following orders:
“(i) Issue a writ of Certiorari or any other appropriate writ,
order or direction thereby calling for records and quash the
impugned order dated 29.06.2022 (Annexure-P-1), order dated
28.11.2020 (Annexure-P2), order dated 17.02.2023 (Annexure-P3),
order dated 20.02.2023 (Annexure-P4), order dated 12.04.2023
(Annexure-P5) passed by the DG BSF.
(ii) Issue a writ of Certiorari or any other appropriate writ,
order or direction thereby directing the respondent DG BSF to
reinstate the petitioner in service with all the consequential
benefits.
(iii) Pass any other order this Hon’ble Court deems fit in the
interest of justice.”
16. Mr. Tarun Rana, learned Counsel appearing for the petitioner
argued that the complainant shared cordial relations with the petitioner
and there was no occasion for any allegation to be leveled against the
petitioner. According to him, the first complaint dated 26th November,
2019 lodged by the complainant does not mention allegations of rape
or physical relationship.
17. The learned Counsel has strenuously argued that it was because
of the nature of the offences mentioned in the complaint, the
proceedings were initially conducted before the Women Harassment
Committee of BSF. He drew this Court‟s attention to the statements
recorded during the said proceedings, wherein according to him, the
complainant stated that she had engaged in sexual relations with the
petitioner only once and that it was consensual and that she was not
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pressurized by the petitioner for any sexual favours by taking
advantage of his posting and presence in the Establishment Branch.
18. The learned Counsel has strongly relied on the recommendation
of the Committee, which has held that incident was not a case of
sexual harassment but a case of cheating on false promise to marry
and cyber crime, for which he says that there was no proof nor any
witnesses, except the CD of recorded conversation. According to the
learned Counsel, at best the case ought to have been referred to the
Cyber Crime, but the respondents wrongly initiated the COI. Even in
the said COI, a fresh inquiry was made into complaint dated 26th
November, 2019, without considering the recommendation and
proceedings of the Women Harassment Committee.
19. The learned Counsel has referred to the various questions and
answers recorded during the COI to argue that most of the answers
support the innocence of the petitioner. He has also submitted that,
although there were certain improvement in the statements, inasmuch
as she initially stated before the Committee that she had physical
relations with the petitioner only once, but later she claimed that it
occurred twice, the second being at a hotel in Kovalam, these
inconsistencies, however, by and large extent strengthen the
petitioner‟s case.
20. According to the learned Counsel, the findings recorded by the
COI, invariably states that the actions of the petitioner to be an act of
cheating and having illicit relationship with another woman,
amounting to adultery. He states that while the act could be immoral,
but could not be rape as during inquiry, COI has found even the
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complainant to be blameworthy and recommended disciplinary actions
against the petitioner as well as the complainant.
21. It has been further submitted by the learned Counsel of the
petitioner that even in the GSFC proceedings, when the complainant
was examined as PW-2, she admitted that although the death
certificate had been provided to her by the petitioner, but the same was
not filed by her along with the complaint dated 26th November, 2019.
Thus, according to the learned Counsel, the veracity of the death
certificate could not be proved as the source from where the printout
had been taken has not been proved.
22. He submits that there had been material contradictions in the
statements of the complainant at various stages during the proceedings
and according to him, the statements do not inspire any confidence.
Further, he has sought to challenge the veracity of the complaint as
allegedly the same had been drafted by some Counsel. According to
him, the offence of rape has not been proved and at best the incidence
was of a consensual physical relationship between two adults. He has
vehemently contested the enhancement of corporal punishment from
the initial two years to ten years in revision and has stated that it was
done in a mechanical and arbitrary manner.
23. Per contra, Ms. Pratima N. Lakra, learned CGSC appearing for
the respondents, submits that the issue is no longer res gestae that this
Court exercising its jurisdiction under Article 226 of the Constitution,
has extremely limited power of judicial review in GSFC proceedings.
She points out that there are only three broad principles under which
these orders passed by the GSFC can be interfered with, which are:
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(i) Patent violation of natural justice
(ii) Lack of jurisdiction
(iii) Manifest perversity
and as such relies on the following judgments:
i. Ram Kishan v Govt. of NCT of Delhi10,
ii. Indian Oil Corporation v Ajit Kumar Singh11,
iii. Sumit Sangwan v Union of India12.
24. The learned CGSC has buttressed her submissions on the
premises that GSFC trial was conducted strictly in accordance with
the BSF Act and Rules, wherein 11 witnesses were examined and
almost 37 documents have been exhibited. According to her, the
petitioner was awarded full opportunity of defending himself and no
violation of natural justice or legal procedure has been demonstrated.
25. She further contends that the GSFC has meticulously analyzed
the oral and documentary evidence, and the findings arrived are
detailed, well-reasoned and based on corroborated facts and as such
the impugned order does not call for any interference by this Court. In
her submission, there was no procedural irregularity or arbitrariness
and, in any case, this court may not override or dilute a conviction
rendered by a competent authority/GSFC after full trial.
26. Ms. Lakra has controverted the grounds of the petitioner, by
submitting that the statement of the complainant has been narrated and
mentioned out of context. According to her, the purported consent that
10
W.P.(C) 6822/2011
11
Civil Appeal No. 3663/2023
12
W.P.(C) 13248/2022
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is being claimed by the petitioner for having a physical relationship is
invalid in law inasmuch as the same was obtained by deceit and fraud,
wherein admittedly the petitioner misrepresented his marital status by
forging the death certificate of his living wife.
27. The learned CGSC has submitted that any inducement with
false promise of marriages vitiates the consent under Section 90 of the
Indian Evidence Act, 1872 and falls squarely within Explanation (ii)
of Section 375 of the IPC. Reliance is placed on the judgment of the
Supreme Court in Pramod Suryabhan Pawar v The State of
Maharashtra13.
28. The learned CGSC has sought to controvert the ground of
material contradictions in the statement of complainant by relying on
the judgment of the Supreme Court in Subodh Nath & Anr. v State of
Tripura14, to buttress her submissions that evidence cannot be
discarded only on the ground of some discrepancy in the evidence of
the witnesses as this can be due to various reasons including normal
errors of observation, loss of memory, mental deposition and the like.
29. She relied on the admitted relationship between the complainant
and the petitioner and corroboration of the hotel records with the CDR
details of the mobile numbers to highlight that the GSFC‟s findings of
the guilt of the petitioner is based on cogent evidence, corroborated
documentary records and admissions of the petitioner.
30. Thus, according to her, the omnibus plea of consensual
13
2019 (9) SCC 608
14
2013 (4) SCC 122
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relationship sought to be argued by the petitioner is wholly
misconceived defense, contrary to both facts and settled legal
principles.
31. It has been further submitted that the scope of Women
Harassment Committee is limited to harassment of women at
workplace and the findings of Women Harassment Committee are not
binding on the statutory GSFC proceedings under the BSF Act.
According to her, the findings of the Women Harassment Committee
support the version of the complainant as it termed the petitioner‟s
conduct as cheating on a false promise of marriage, which forms the
basis of criminal liability under Sections 376 and 468 of the IPC.
32. As regards to the contention of the learned counsel for the
petitioner that no disciplinary proceedings were initiated against the
complainant, she has submitted that there is no concept of negative
parity in criminal law and in any case, the offences and rules are
different for both the petitioner and the complainant, wherein the act
of the petitioner against the complainant involved intentional deceit
through fabrication of death certificate and physical exploitation under
false promise of marriage.
33. As regards to the admissibility of the certificate under Section
65B of the Indian Evidence Act is concerned, the learned Counsel has
relied on the judgment of the Supreme Court in Arjun Panditrao
Khotkar v Kailash Kushanrao Goratiyal15. Further, with regard to the
enhancement of the quantum of punishment imposed on the petitioner,
15
2020 7 SCC 1
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the learned Counsel has taken this Court to Section 116 of the BSF
Act, to submit that the necessary power has been vested with the
authorities and explained that, in view of the minimum sentence
prescribed for the offence of rape under Section 371 of IPC, the
petitioner was rightly punished and sentenced upto ten years of
imprisonment with termination of his service from the Force and
accordingly, prays for dismissal of this writ petition.
34. Having heard the learned Counsel for the parties, and taking
into consideration the various documents referred by them during the
course of hearing, this Court is of the view that before embarking on
the path of deciding the present writ petition, the scope and extent of
interference of this Court under the provisions of Article 226 of the
Constitution of India in trials conducted by the GSFC Act and rules
framed therein, must be understood, in order to appreciate the
adversarial controversy raised in this petition between the parties
concerned. Recently, a Coordinate Bench of this Court in the matter of
Deshraj v Director Gen. B.S.F. & Anr16, vide its judgment dated 13th
May, 2025 profitably referred to a judgment passed by a Division
Bench of the Gauhati High Court in Director General, Border
Security Force & Ors. v Iboton Singh (KH)17 in the following words:
“25. Before opining on the conflicting claims as raised by the
parties, it is relevant to note the settled position in law that the
proceedings before the SSFC are not open to be reviewed by this
Court in the manner of an appellate forum. The scope of
interference of this Court under Article 226 of the Constitution of
India is circumscribed. We may quote the relevant extract from the
Director General, Border Security Force (supra), which reads as
under:-
12. Since the entire procedure of a trial by SFC is
16
W.P.(C) 768/2007
17
2007 SCC OnLine Gau 419
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provided in the BSF Act and the Rules made
thereunder and since the provisions contained
therein require that the findings reached, and the
sentence passed, against and accused by a SFC, be
considered by a competent authority for the purpose
of confirmation thereof, such confirmation of the
findings and sentence by such an authority shall be
final and shall not be, ordinarily, interfered with by
invoking the power of judicial review under article
226. Though it is true that notwithstanding the
finality attached to the proceedings of a SFC, which
stands confirmed by a competent authority, the High
Court shall not, ordinarily, exercise its power of
judicial review by invoking article 226, the fact
remains that constitutionally, there is no limitation,
on the power of the High Court, to examine, under
article 226, if there has been any infraction of the
provisions of the relevant enactments resulting into
miscarriage of justice. Thus, for the limited purpose
of determining if the proceedings of a SFC have
been conducted in accordance with the requirements
of the law, the High Court’s power, under article
226, would always remain available. The power,
under article 226, will also be available to find out if
there has been violation of the principles of natural
justice, while conducting the trial and whether such
violation has vitiated the entire proceedings. The
power of judicial review, so exercisable, does not,
however, empower the High Court, if one can point
out, to sit on the findings of a SFC or on the
proceedings of a SFC as an appellate authority and
re-appreciate the findings for the purpose of
determining if the evidence were sufficient for the
conclusion reached. However, when the findings
reached are found to be perverse and/or contrary to,
or in violation of, the provisions of the law relevant
thereto and if such infraction has resulted, in the
opinion of the High Court, failure of justice, it
becomes the duty of the High Court to step in under
article 226 and undo the wrong. If the High Court
sits over the findings of a SFC as if it is sitting as an
appellate authority, then, such an approach of the
High Court would amount to overstepping its
jurisdiction.”
35. Thus, this Court is clear in its mind that, while exercising its
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power under Article 226 of the Constitution against the proceedings or
orders passed pursuant to the GSFC proceedings, which are conducted
under the BSF Act, it does not act as an appellate Court, nor is it
permitted to re-appreciate the evidence. This Court while entertaining
its supervisory jurisdiction in this Writ Petition is basically exercising
its power of judicial review which itself enjoins upon and confines its
scope to examine only the correctness of the decision making process
and the fairness of the procedure adopted and does not examine the
merits of the decision per se. As to the extraordinary circumstances, in
which this Court can interfere with the conclusion or the finding of the
GSFC proceedings and the extent to which it can mould the relief, the
Supreme Court in the celebrated judgment of B.C. Chaturvedi v UOI
& Ors.18, has invariably delineated the limited scope of judicial review
in the following words:
“12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power of
judicial review is meant to ensure that the individual receives fair
treatment and not to ensure that the conclusion which the authority
reaches is necessarily correct in the eye of the court. When an
inquiry is conducted on charges of misconduct by a public servant,
the Court/Tribunal is concerned to determine whether the inquiry
was held by a competent officer or whether rules of natural justice
are complied with. Whether the findings or conclusions are based
on some evidence, the authority entrusted with the power to hold
inquiry has jurisdiction, power and authority to reach a finding of
fact or conclusion. But that finding must be based on some
evidence. Neither the technical rules of Evidence Act nor of proof
of fact or evidence as defined therein, apply to disciplinary
proceeding. When the authority accepts that evidence and
conclusion receives support therefrom, the disciplinary authority is
entitled to hold that the delinquent officer is guilty of the charge.
The Court/Tribunal in its power of judicial review does not act as
appellate authority to reappreciate the evidence and to arrive at its
own independent findings on the evidence. The Court/Tribunal may
interfere where the authority held the proceedings against the
18
(1995) 6 SCC 749
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delinquent officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules prescribing the
mode of inquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evidence. If the conclusion or
finding be such as no reasonable person would have ever reached,
the Court/Tribunal may interfere with the conclusion or the
finding, and mould the relief so as to make it appropriate to the
facts of each case.”
36. Thus, it is decipherable from the long list of precedents holding
that, where a Court Martial or a departmental proceeding, if the
inquiry is otherwise properly held, it is the said authorities, who are
the sole judges of facts. So long as the findings are supported by some
legal evidence, the adequacy or reliability of such evidence is not a
matter which can be permitted to be canvassed before the High Court
in a proceeding for a writ under Article 226 of the Constitution.
Reliance in this regard is placed on the judgment of the Supreme
Court in State of Andra Pradesh & Ors. v Chitra Venkata Rao19.
37. Further, a finding of fact recorded by these authorities cannot be
challenged on the ground that the relevant and material evidence
adduced before them was insufficient or inadequate to sustain the
finding. The adequacy or sufficiency of evidence led on a point and
the inferences of fact drawn from the said findings falls within the
exclusive jurisdiction of the said departmental authorities. Reliance in
this regard is placed on the judgment of the Supreme Court in Syed
Yakoob v K.S. Radhakrishnan20.
38. In contradiction to the aforesaid precedent, this Court cannot be
oblivious of the fact that the Supreme Court, in Bharti Airtel Limited
19
(1975) 2 SCC 557
20
1963 SCC OnLine SC 24
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v A.S. Raghvendra 21, has held that the power of the High Court to re-
appraise the facts, cannot be set to be completely impermissible under
Article 226 and 227 of the Constitution. The Supreme Court while
putting a caveat to the said power clarified that in re-appraising the
facts, there must be a level of infirmity greater than ordinary, in the
said departmental or Court Martial or Tribunal‟s order, which is facing
judicial scrutiny before the High Court, to justify interference. Thus, a
balance has to be struck between both the competing powers, with the
aforesaid legal mandate. In other words, even if any infirmity is noted
in any decision of GSFC, this court can be called upon to interfere,
only, if the infirmity complained of, is greater than ordinary in the
judicial sense.
39. As far as the present case is concerned, the first contention of
the learned Counsel for the petitioner, regarding allegation of rape
having been never proved and at the most the same to be construed to
be a consensual relationship between two adults of matured age is
concerned, this Court finds that there is cogent evidence on record to
show that the petitioner and the complainant had met each other at
Kovalam, Trivandrum on 27th September, 2019 and 13th October,
2019. In this regard, the evidence brought on records points out that;
(i) The complainant (*****) is a widow of a BSF employee,
who was enrolled in BSF in the month of December 2012 on
compassionate basis and has a 14 years old girl child. She
joined SHQ BSF Trivandrum, Kerala on attachment in the
month of June 2019 and had been working with the
21
(2024) 6 SCC 418
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Establishment Branch, SHQ BSF Trivandrum since then.
(ii) The petitioner was also in the same office and being
acquainted with the work was asked to guide the complainant
in the office functioning.
(iii) Admittedly, both the petitioner and the complainant due
to their official engagement in the same establishment, knew
each other.
(iv) The petitioner misrepresented that his wife has also
expired after delivery of his second issue and that he is a
widower and gave the complainant false promises of marriage,
so that they both can raise their children together. It is on
record, that the complainant had also inquired about his wife
from him, so as to know how she had expired and also asked
for her death certificate.
(v) The accused showed her the death certificate of his wife-
Smt. Nisha Verma, in his mobile.
(vi) The complainant, who was examined as (PW-2), could
not believe that any person would make false death certificate
of his living wife, so she trusted the petitioner and got
involved with him. As she was sure that the petitioner would
marry her, she agreed to go to a hotel along with him.
(vii) On 27th September, 2019, they went near Kovalam Beach
(Rock N Beach) in a car and went to a hotel room (Room No.
305) and had stayed there that night.
(viii) The defence, although sought to set up a plea of Alibi i.e.
the petitioner was present somewhere else except the place of
alleged offence at the relevant time of alleged offence on 27 th
September 2019, however, this plea was merely an
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afterthought and was not taken at the time of framing of
charges i.e. hearing under BSF Rule 45 which the accused
omitted.
(ix) Anyhow, the defence came with this plea very late during
the trial only and after closing of the case for the prosecution.
(x) In any case, the GSFC disbelieved the version of defence
that the petitioner went to Nagarcoil and Kanyakumari on 27th
September, 2019 as it has miserably failed to produce any iota
of evidence in this regard. Whereas, the prosecution has
established the fact that the petitioner was at Kovalam,
Trivandrum in the intervening night of 27th/28th September,
2019 with the complainant.
(xi) Further, it has also come on record that the complainant
has gone with the petitioner in Hotel Jumayira International on
13th October 2019 and had stayed in room No. 103 for about
two hours.
(xii) The petitioner has also admitted in his written statement
without oath and also during Court questioning under BSF
Rule 93(2) that he went to room number 103 of Hotel
Jumariya International at Kovalam, Trivandrum on 13th
October with PW-2 to have lunch. Hence the issue in respect
of 13th October, 2019 is not in dispute.
(xiii) The hotel records and CDR details have been
corroborated, wherein the records produced by the Cyber Cell,
Kerala Police, for both the mobile numbers of the petitioner
and the complainant establish their same location on 27th
September, 2019 and 13th October, 2019.
(xiv) In view of the aforesaid overwhelming evidence, the
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GSFC has rightly believed that the petitioner and the
complainant had met with each other in a hotel at Kovalam
Trivandrum on 27th September, 2019 and also on 13th October,
2019. Hence, the meeting of the petitioner and the complainant
on both the dates has been proved beyond reasonable doubt by
the Respondents.
40. Further, it has also been proved that both the complainant and
the petitioner, not only met with each other at Kovalam Trivandrum
on 27th September, 2019 and 13th October, 2019, but also had sexual
intercourse on these dates, as is apparent from the following evidence:
(i) The petitioner, in order to gain confidence of the
complainant, had spoken about their marriage and also said that
his father, sister and mother will come to Trivandrum for their
marriage. After the trust was gained, both of them stayed in a
hotel for that night and the petitioner had sexual intercourse
with her (PW-2). Then on Friday, probably on 11th October,
2019, she went to her home in Kollam.
(ii) The Court disbelieved the version of defence that the
petitioner had not gone to Kovalam, Trivandrum with the
complainant on 27th September, 2019. Further the Court also
disbelieved the version of defence that on 13 th October, 2019,
the petitioner only had lunch in said room of said Hotel at
Kovalam with the complainant. More so, where there was no
food service.
(iii) The Court believed the testimony of the complainant
(PW-2) which has remained un-impeached despite extensive
cross-examination which continued for three days. However,
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the Court has no reason to believe the version of the defence as
to why the petitioner was unable to have sexual relations with
the complainant despite being alone with complainant in hotel
rooms, once for entire night on 27th September, 2019 and then
on 13th October, 2019 for about two hours.
41. This Court having found that both the petitioner and the
complainant, not only met each other at Kovalam, Trivandrum on 27th
September, 2019 and 13th October, 2019, but also had sexual
intercourse on these dates, then the third issue remains, as to whether
the consent for the said establishment of physical relationship was
tainted with false promise to marriage. This Court while shifting
through the evidence brought on record, finds that:
(i) That, the petitioner had obtained consent of the
complainant (PW-2) for sexual intercourse by giving her false
promise of marriage.
(ii) The Court believed the statement of PW-2 that when she
was in physical relationship with the petitioner, once she had
also asked the petitioner to intimate the DIG, SHQ BSF,
Trivandrum about their proposed marriage, but the same was
denied by the petitioner.
(iii) The Court also believed the statement of PW-6/*****,
mother of PW-2, who has corroborated the statement of the
complainant that her daughter intimated her that the petitioner is
a widower and he would marry her. She has also revealed that
her granddaughter was also aware that PW-2 is going to marry
the petitioner.
(iv) The Court believed the testimony of PW-2, who stated
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that she entered into a physical relationship with the petitioner
after believing that he was a widower and when the promised
her to marry. However, it was only during the time when the
petitioner was on leave, she came to know that he was betraying
her and then only then the Complainant started to avoid him.
(v) The Court believed that the petitioner had deceitfully
promised marriage with PW-2 in order to obtain her consent to
have sexual relationship with him. He also substantiated this
fact that he is a widower by showing her, the death certificate of
his wife-Smt. Nisha Verma.
(vi) Thus, this Court has no reason to not believe that the
physical relationship was established by the petitioner on false
promise of marriage and which was not only substantiated by
various oral testimonies led during the trial, but also by showing
the Complainant the forged death certificate of his living wife.
42. The next question, which arises for consideration by this court,
is as to whether having physical relationship and false promise of
marriage is proved from records, and does the same amount to rape, so
as to be punishable under Section 376 of the IPC. This Court is
conscious of the difference between giving a false promise and
committing breach of promise. Pertinently, in cases involving false
promise, the petitioner right from the beginning would not have any
intention to marry the complainant and would have deceitfully
induced her into physical relationship by giving a false promise to
marry her, solely to satisfy his lust, whereas in case of breach of
promise, one cannot deny a possibility that the petitioner might have
given a promise with all seriousness to marry the complainant at the
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time of making promise, however, subsequently the petitioner might
have encountered certain circumstances unforeseen by him or the
circumstances beyond his control, which prevented him to fulfil his
promise. Therefore, this Court is of the view that all cases of false
marriages have to be assessed based on their individual facts and
circumstances.
43. In the present case, it has come on record that the petitioner, had
given a false promise of marriage, as he never intended to marry the
complainant, as he was already married. To put this in a different
manner, the purported consent for sexual relationship was obtained by
the petitioner by deceit and fraud as he deliberately misrepresented his
marital status and even created a false narrative of being a widower,
by providing the complainant with a forged death certificate of his
living wife. Apparently, the made-to-believe story concocted by the
petitioner with the supporting forged certificates has tainted the
consent. The learned Counsel for the respondents has rightfully in her
contentions submitted that such an inducement vitiates the consent
under Section 90 of the Indian Evidence Act, 1872 and falls squarely
under the precincts of Explanation (ii) of Section 375 of the IPC.
44. Thus, this Court has no hesitation in holding that the plea of
consensual relationship by the petitioner is ill-founded and the GSFC
findings on rape is based on overwhelming cogent evidence,
corroborated by documentary records, admissions and oral testimonies
of the witnesses. There appears to be no disjunction between the
evidence on record and the findings arrived at by the GSFC, which
could persuade this Court in finding any infirmity in the impugned
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order. Even, the loose contradiction in the statement of the
complainant pointed by the learned Counsel of the petitioner, does not
meet the threshold of being greater than ordinary infirmity in the
judicial sense, so to persuade this court for any interference under
Article 226 of the constitution.
45. Similarly, the second issue raised by the petitioner, relating to
the charges of forgery levelled against him, inasmuch as it has been
argued by him that the forgery of death certificate was never proved,
so as to attract the provision of Section 468 of the IPC. This Court
finds that the forgery is defined under Section 463 of IPC which reads
as under:
“Section 463- Forgery: Whoever makes any false document [or false
electronic record] or part of a document [or electronic record,] with an
intent to cause damage or injury, to the public or to any person, or to
support claim or title, or to cause any person to part with property, or to
enter any express or implied contract, or with intent to commit fraud or
that fraud may be committed, commits forgery.”
46. The aforesaid provision, relevant to the context says that
whoever makes any false document or false electronic record with
intent to support any claim or title commits forgery. As far as the
present case is concerned, the petitioner in the month of
September/October 2019, produced a false or forged death certificate
of his wife- Smt. Nisha Verma. The Court believed that statement of
PW-2 that the petitioner was convincing her in the month of
September 2019 for marriage after showing himself as a widower.
Then, she had also inquired about his wife and as to how she had
expired and also asked for her death certificate. Apparently, the
petitioner in order to justify and support his fraudulent act of being a
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widower, has prepared the false certificate of his living wife. It has
come on record that the forged death certificate was shown to the
complainant over the mobile phone and during her statement before
the Women Harassment Committee, the following statements were
made, which derives the culpability of the offence of forgery against
the petitioner:
“Q.12 What prove do you have to justify your allegations?
A. I have photocopy of both the fake death certificates and
recorded telephonic conversation between me and CT. Kiran
Kumar, copy of photograph shared by him.
Q.13 Is it correct to suggest that you have preferred to indulge in
sexual relationship with Ct. Kiran Kumar on 27/09/2019 believing
that he would marry you as promised as he being a widower as per
death certificate of his wife to you by him?
A. Yes.”
47. The Court, thus, has no choice but to believe that the petitioner
in the month of September/October 2019 prepared a false/forged death
certificate of his living wife, namely Smt. Nisha Verma. The Court
believes that there was no other reason for the petitioner to prepare
such certificate, but to cheat PW-2 by showing himself as a widower
and then to make a false promise of marriage to her. Further, it is
rather disturbing to note that two sets of forged death certificates have
surfaced during trial of the present case and the petitioner did not even
bother to explain its existence. The existence of the forged document
is one thing and the admissibility of the said forged document is some
other thing. Although, the petitioner had been harping upon the
admissibility of the forged document and has sought to question as to
the source from where the printout has been obtained, but did not take
any steps to deny or explain the existence or prove that the said
documents could not had been prepared by him or he could not had
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taken advantage of the said forged document or the forged document
surfaced is for some other purpose or reason. The Supreme Court in
the case of Padum Kumar v State of Uttar Pradesh22 has held that in
the absence of any explanation relating to forgery, a presumption has
to be raised against the beneficiary, which in the present case is the
petitioner. The benefit being to support his claim of being a widower,
so as to support his false promise of marriage. The Supreme Court in
the said judgement held inter alia:
“18. In the light of the evidence of PWs 1 to 3 and other evidence,
the High Court rightly found that the appellant who delivered the
registered envelope at the place of the complainant-PW-1 is bound
to explain as to who made the alleged signature in Ex.-P4-delivery
slip. In the absence of any explanation by the appellant-accused, as
held by the High Court, a presumption is to be raised against the
appellant who delivered the envelope as he is the only person
having knowledge of the same. From the evidence of PW-3 Dr.
M.L. Varshney, the prosecution has proved that the envelope
contained valuable security-four Indira Vikas Patra of value of
each Rs.5,000/- totalling Rs.20,000/-. Upon appreciation of
evidence adduced by the prosecution, the courts below rightly
recorded the concurrent findings that the appellant has forged the
signature of PW-2-Devesh Mohan and the conviction of the
appellant under Sections 467 and 468 IPC is based upon the
evidence and the conviction does not suffer from any infirmity
warranting interference.”
48. As regards the issue of admissibility of the certificate under
Section 65B of the Indian Evidence Act, 1872 is concerned, this Court
need not deal with the said aspect as the issue stands already settled by
the Supreme Court that any electronic record can be produced along
with the said certificate even at a later stage, which has been done in
the present case with both the forged death certificates. In any case,
this Court cannot re-assess the evidence and seek to substitute on its
22
(2020) 3 SCC 35
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own finding on this matter. The GSFC had intertwined various pieces
of evidence before it, based on which it had come to conclusions on
fact. Having done so, this Court cannot re-open the matter. These
pleas are, therefore, repelled.
49. The next contention of the learned Counsel for the petitioner is
as to the enhancement of the sentence from two years to ten years by
the revisional authority, which according to him, has been done in a
mechanical manner. However, this Court finds that the „Revision
order for assembly of General Security Force Court under the BSF
Act,‟ has passed a very detailed and reasoned order dated 28th
November, 2022, as to why the sentence already awarded by the
GSFC was not commensurate and had to be re-considered after
compliance of Rule 105(4) of the BSF Rules, 1969, in the following
words:
“4. While in on way intending to interfere with the discretion of the
court in awarding the sentence, I, as confirming authority wish the
court to take into account the following aspects while reconsidering
the sentence awarded by it;-
(a) In this case, the accused has been charged (1st change) u/s 46
BSF act,1968 for committing an offense punishable under
section 376 of IPC, 1860 and found guilty. As per the
provisions of section 376 IPC 1860, the offense of rape shall be
punished with rigorous imprisonment for a term which shall
not be less than 7 years but which may extend to imprisonment
for life, and shall be liable fine. The intention of the legislature
clearly shows that in case a person is found guilty of offense
u/s 376, IPC the court should not award less than 7 years of
imprisonment.
(b) It appears that the GSPC while deciding the quantum of
sentence after finding the accused guilty U/S 376, IPC took into
consideration provisions of section 46(b) of the BSF act, 1968.
Section 46(6) provides that where the offense charged is one
which is not punishable with death, the accused shall be liable
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to suffer any punishment assigned for the offence by the law in
force in India, or imprisonment for a term which may extend to
seven years, or such less punishment as in this act mentioned.
Resultantly the court sentenced him to suffer rigorous
imprisonment for the two years and dismissal from service.
(c) The court ought to have considered that application of
provisions of section 46(b) to award lesser punishment were
not applicable in view of the clear cut statutory mandate
wherein minimum punishment has prescribed for the offence
considering the seriousness of the offence and its effect on the
society. Such statutory mandate ought to have been considered
and adhered to by the court while deciding the quantum of
punishment. However, the court has apparently overlooked this
extremely crucial aspect of law. The court ought to have
remembered that a rapist not only violates the victim‟s privacy
and personal integrity but inevitable caused psychological as
well as physical harm in the process. Rape is not merely a
physical assault; it is often destructive of the whole personality
of the victim.
(d) A harmonious reading of the section 46(b) of BSF act 1968, the
amendment prescribing minimum punishment under section
376, IPC and judgements of the Hon‟ble Supreme court on the
issue of awarding punishment lesser than the minimum
prescribed under the relevant statute would show that whenever
a BSF person is tried by Security force court constituted under
BSF act 1968 for having committed an offence under section
376, IPC (charged under section 46 of the BSF Act, 1968) and
found guilty the security force court shall be required to award
the punishment prescribed under section 376, IPC. In this
regard, circular No. 1/37/14/CLO-BSF/2022/2229- 2575 dated
06.10.2022 issued from HQ DG BSF on the issue may also be
taken into consideration.
5. Seen in the light of the para 4 above the sentence awarded by the
courts inappropriate as the same is less that the minimum sentence
prescribed for the charge of „Rape‟ u/s 376 IPC. The court may,
therefore, consider whether under the facts and circumstances of
the case, in the light of relevant legal provisions as well as the
gravity of the charge the sentence awarder by the court
commensurate with the gravity of the offence of which the accused
has been found guilty or otherwise.
50. The learned Counsel for the petitioner has tried to point out the
anomaly between minimum punishment prescribed for the offence
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punishable under Section 376 IPC in the aforesaid order with the
minimum punishment awarded by the GSFC. This Court finds that the
minimum punishment prescribed for an offence punishable under
Section 376 IPC has been enhanced to minimum ten years from the
earlier seven years with effect from 21st April, 2018. Thus, mentioning
of seven years as the minimum punishment in the aforesaid revision
order is merely an error and as such the GSFC after noting the latest
amendment, has rightly punished the petitioner for the minimum
punishment of „ten years‟, as prescribed for offence under Section 376
IPC.
51. This Court has tasked upon itself to narrate the aforesaid
clinching evidence against the petitioner, which has gone un-rebutted,
to independently arrive at a decision that there is no infirmity in the
conclusion arrived by the GSFC. Further, this Court finds that there is
absolutely no material on records to show that there had been any
violation of principles of natural justice or that the proceedings held
against the petitioner was in any manner inconsistent with the rules of
natural justice. This Court finds that the petitioner was given ample
opportunities for defence and had been provided with all the
documents during the trial. Further, the petitioner was also given full
opportunity of cross-examination, which was spilled over to several
dates. Thus, by no stretch of imagination, it can be construed that there
had been any violation of principles of natural justice in any of the
proceedings against the petitioner. The petitioner has failed to
demonstrate any procedural unfairness or breach of natural justice.
52. It is apparent from the facts of the present case that these
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disciplinary proceedings against the petitioner were initiated upon
receipt of a serious complaint from the widow of an ex BSF
employee, wherein it was alleged that the petitioner had deceitfully
induced her into believing that he was a widower and as such
established physical relationship with her on false promise of
marriage, for which the petitioner even forged death certificate of his
living wife. The competent authority, after due application of mind
and in exercise of powers under Rule 174 of the BSF Rules, directed
the holding of a COI, which was duly followed by an additional COI.
Upon evaluation of the material collected during the inquiries, a prima
facie case was found against the petitioner, warranting the holding of a
record of evidence. After due scrutiny of record of evidence, the
competent disciplinary authority decided to convene the GSFC, as
permissible under the provisions of BSF Act and Rules. Further, the
record demonstrates that the charges were framed in accordance with
the BSF Rules. The GSFC after considering all the evidences on
record, including oral testimony and documentary evidence, arrived at
a reasoned finding of guilt. The procedural framework under the BSF
Act and Rules has been duly adhered to at every stage. Thus, the
findings of the GSFC are based on comprehensive evaluation of oral
and documentary evidence, and do not suffer from any infirmity,
illegality or perversity warranting interference by this Court under
Article 226 of the Constitution.
53. This Court cannot ignore the nature of the allegations which
involves grave offence of rape and forgery by a disciplined Force. The
act of deceitfully inducing a woman, particularly the widow of a
deceased Force member is highly deplorable. The act attributed to the
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petitioner is highly condemnable and militates against the standards of
discipline, integrity and the honour expected of the Uniformed
Services and as such the quantum of punishment appears to be
commensurate and proportionate to the acts and demeanour of the
petitioner. The petitioner has failed to demonstrate any procedural or
statutory lapse warranting interference by this Court in exercise of its
jurisdiction.
54. For all the aforesaid reasons, this Court does not find any
grounds to interfere with the well-reasoned order. The rejection of the
statutory petition by the DG, BSF, offer appropriate justification for
the view taken and the punishment inflicted also passes the test of
proportionality, as the trait of “behaviour and discipline” is something,
which is absolutely non-negotiable for Personnel of Armed
Forces/Armed Paramilitary Forces.
55. Accordingly, the writ petition is dismissed. All pending
applications, if any, are also disposed of. There shall be no order as to
cost.
OM PRAKASH SHUKLA, J.
C. HARI SHANKAR, J.
JULY 25, 2025/gunn
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