Delhi High Court
Sheelendra Kumar vs Union Of India Through Secretary & Anr on 13 August, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 01.08.2025
Judgment pronounced on: 13.08.2025
+ W.P.(C) 10624/2020
SHEELENDRA KUMAR .....Petitioner
Through: Mr. Akhilesh Kumar Pandey,
Ms. Deepika Mishra, Mr. Manoj Kumar and
Mr. Abhishek Misra, Advs.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Richa Dhawan SPC along
with Mr. Anuj Chaturvedi, Adv
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT
13.08.2025
%
OM PRAKASH SHUKLA, J.
1. The petitioner has filed the present petition assailing his
dismissal from service and his conviction under Section 354 and
Section 323 of the Indian Penal Code, 18601 by the General Security
Force Court2 constituted under the Border Security Force Act, 19673.
2. Shorn off unnecessary details, the facts as noted from the
petition would be that the petitioner was enrolled as CT. (GD) bearing
1
“IPC“, hereinafter
2
“GSFC”, hereinafter
3
“BSF Act“, hereinafter
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No. 944554474 in the Border Security Force4 on 06.04.1994 as
Constable and with an unblemished career in the force.
3. In the year 2010, 70 Bn BSF was deployed along the Indo-
Bangladesh border under Tripura Frontier BSF, and the petitioner was
among those who were deployed. On 29th November 2020, „D‟ Coy
70 Bn was deployed at Border Out Post5 Amzadnagar near Belonia,
district South Tripura. On the same day at about 5:30 hrs, CT. V
Velusami and CT. Santosh Singh Jat left the aforesaid BOP for
Observation Point6 duty, at OP No. 3 along the border. At the same
time, a dog patrolling team comprising of CT. Ashwani Kumar and
CT. Rajesh Singh also left the BOP for patrolling along with border,
who were later joined by the petitioner.
[[
4. As per the substratum of the matter, apparently around 7:45 am,
the petitioner received information through his sources that 4-5 head
of cattle would be smuggled to Bangladesh from Amzadnagar. Upon
receiving the information, the petitioner told CT. V. Velusamy and
CT. Santosh Kumar that he is going to check the suspected location
for smuggling and would call them via wireless, if required.
5. Apparently, when the petitioner reached near the rubber
plantation, he spotted one Mr. Abdul Kalam hiding in the bushes. He
was there to facilitate smuggling of cattle and was speaking on his
mobile phone. As soon as the said Mr. Abdul Kalam saw the
petitioner, he started shouting „BSF BSF Bhago goru bhagao’ (BSF
4
“BSF”, hereinafter
5
“BOP” hereinafter
6
“OP” hereinafter
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BSF run shove the cow) and running towards the rubber plantation.
While running, he got stuck in one of the bushes and fell down. His
mobile phone also fell which was later picked up by the petitioner and
was submitted to the P S Belonia. Furthermore, the petitioner spotted
cattle with one Mr. Khokha Mia (father of the said Mr. Abdul Kalam)
near the rubber plantation. The petitioner moved towards Mr. Khokha
Mia and the cattle with an intention to catch them. After hearing the
shouts of Mr. Abdul Kalam, his father Mr. Khokha Mia, his brother
one Mr. Badshah Mia and some other persons including some
females, who were apparently waiting behind the bushes to assist in
Mr. Abdul Kalam in moving the cattle, came towards the petitioner
and began assaulting him with the bamboo sticks, dah etc.
6. It is the case of the petitioner that, after he ran towards OP No.
3 he called CT. V. Velusamy and CT. Santosh Kumar Jat through
wireless set for help. Both of the BSF personnels reached at the spot
and saved the petitioner from the mob by shielding him. By that time,
Mr. Khokla Mia along with his companion miscreants had already
injured the petitioner. During the scuffle between the BSF personnels
and the companion miscreants, Mr. Abdul Kalam snatched the rifle
from CT Santosh Kumar Jat. During the said altercation, few persons
from the mob including women tried to snatch the charged rifle from
him. In this process, the trigger of the weapon was pressed and
gunshot got fired and bullet accidently hit Mr. Khokla Mia. Mr.
Khokla Mia succumbed to his injuries on the same day.
7. Thereafter, the Offg. Coy Commander D Coy and Commandant
70 Bn BSF reached the spot and after verifying the said incident, took
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BSF personnels to BOP Amzadnagar. From BOP, the injured
petitioner and CT. Santosh Kumar Jat were taken to Belonia hospital.
On the same day Offg. Coy Commander of D Coy filed an FIR against
Mr. Khokha Mia, Mr. Abdul Kalam and Mr. Badshah Mia (FIR no.
283 of 2010) in P S Belonia under Section 148, 149 & 353 of IPC
against the aforesaid miscreants in PS Belonia for attacking sentry on
duty and preventing them from discharging bona fide Government
duties and causing grievous hurt with an attempt to kill BSF
personnel.
8. On the same day, another FIR (FIR No. 282 of 2010) came to
be lodged in P S Belonia by one Smt. Ambia Khatoon who was wife
of Mr. Khokha Mia against the petitioner and the BSF personnels viz.
CT. V. Velusami and CT. Santosh Singh Jat. According to the said
FIR7 apparently, at around 7:30 am, one of the BSF personnels was
seen dragging daughter of Mr. Khokha Mia8 near tower no. 3 towards
jungle by holding her hand. According to the complaint, one Ms. Bina
Akhtar witnessed the entire said incident and informed the matter to
her brother i.e. Mr. Abdul Kalam and apparently he saved the
complainant. Smt. Ambia Khatoon further alleged that BSF personnel
assaulted Mr. Abdul Kalam which caused him severe injuries.
According to the complainant, Mr. Khokha Mia reached the spot to
save his son (Mr. Abdul Kalam) and in the meantime one of the BSF
personnels came down from tower no. 3 of Amzadnagar BOP and
apparently fired bullet towards Mr. Khokha Mia, thereby causing an
injury on his head which resulted in his demise on the same day.
7
“complaint” hereinafter
8
“complainant” hereinafter
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9. It is pertinent to mention that, on the very next day i.e. on 30th
November 2010 an Inquiry was conducted by Staff Court of Inquiry9
and Deputy Inspector General BSF Udaipur, Bagafa Tripura (S)
directed Sh. G N Padukone, Commandant of 129 BN BSF to
investigate the circumstances under which the armed altercation took
place. Subsequently vide order 22nd December 2010, Sh. G N
Padukone after investigating the matter, submitted the SCOI findings
and the SCOI Opinion
10. Records reveal that, Belonia Police station also investigated the
complaint and a chargesheet came to be filed on 18th November 2015.
Thereafter vide order dated 5th May 2015 the case was transferred to
Security Force Court for trial against BSF personnels viz. CT. V.
Velusami, CT. Santosh Singh Jat and the petitioner under Section 80
of the BSF Act on the following charges:
“The Accused No.1, No. 970005180 CT. V. Velusami, Accused
No. 2 No. 94455447 CT Sheelender Kumar and Accused No. 3,
No. 0744816 CT Santosh Singh Jat, of 70 Bn BSF, attached with
168 Bn BSF, are charged withFIRST CHARGE “COMMITTING A CIVIL OFFENCE
BSF ACT THAT IS SAY MURDER
SEC-46 PUNISHABLE U/S 302 IPC”
(against accused No.1 in that he, at village Amzadnagar near OP
only) No. 3 in the AOR of BOP Amzadnagar on
29.11.2020 at about 730 hrs hearing a shot
by his service weapon i.e. INSAS Butt No.
339 Body No. 1693477 at Shri. Khokha
Mia S/o Late Ajid Mia R/o Amzadnagar
caused the death of Shri. Khokha Mia
9
“SCOI” hereinafter
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SECOND CHARGE COMMITTING A CIVIL OFFENCE
BSF ACT THAT IS SAY MURDER
SEC-46 PUNISHABLE U/S 376 IPC”
(against accused No. 2
only) in that he, at village Amzadnagar near the
house of Shri. Khokha Mia on 29.11.2010
at about 0730 hrs committed rape on the
daughter of Khokha Mia R/o AmzadnagarTHIRD CHARGE COMMITTING A CIVIL OFFENCE
BSF ACT THAT IS SAY WRONGFULLY
SEC-46 RESTRAINING A PERSON
PUNISHABLE U/S 341 IPC”
(against accused No.1,
in that they together,
2 & 3 only)
at village Amzadnagar near the OP No. 3
in the AOR of BOP Amzadnagar on
29.11.2010 at about 0730 hrs, restrained
Shri Khokha Mia S/o Late Ajid Mia, Shri.
Badsah Mia s/o Shri Khokha Mia & Shri
Abul Kalam S/o Shri. Khokha Mia all R/o
Village Amzadnagar
FOURTH CHARGE COMMITTING A CIVIL OFFENCE
BSF ACT THAT IS SAY VOLUNTARILY
SEC-46 RESTRAINING A PERSON
PUNISHABLE U/S 341 IPC”
(against accused No.1,
in that they together,
2 & 3 only)
at village Amzadnagar near the OP No. 3
in the AOR of BOP Amzadnagar on
29.11.2010 at about 0730 hrs, voluntarily
Shri Khokha Mia S/o Late Ajid Mia, Shri.
Badsah Mia s/o Shri Khokha Mia & Shri
Abul Kalam S/o Shri. Khokha Mia all R/o
Village Amzadnagar
11. In the interregnum Commandant, 168 Bn BSF Gokulnagar,
Tripura convened order dated 18th November 2015 directing evidence
to be recorded as per Rule 48 of BSF Rules. Subsequently, Record of
Evidence10 was submitted to GSFC and proceedings against the10
“ROE” hereinafter
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petitioner under Section 376 r/w Section 511, Section 341 and Section
323 r/w Section 34 of IPC; CT V. Veluswamy under Section 302, 341
and 323 r/w Section 34 of IPC and CT. Santosh Kumar under Section
341 and Section 323 r/w Section 34 of IPC were initiated.
12. Subsequently trial was conducted by GSFC at 200 Bn BSE
Gokulnagar, Tripura on 2nd April 2019. The petitioner pleaded „Not
Guilty‟ and thereafter, the proceedings continued against the petitioner
on a day-to-day basis between 02.04.2019 to 15.05.2019.
Subsequently, on 15th May 2019, GSFC acquitted BSF personnels viz.
CT. V. Veluswamy and CT. Santosh Kumar Jat of the charges
including the charge of murder which was alleged to have been
committed by CT. V. Veluswamy. However, GSFC convicted the
petitioner under Section 354 of IPC and resultantly, dismissed the
petitioner from services.
13. Subsequently, the petitioner preferred a pre-confirmation
petition under Section 117 (1) of the BSF Act before HQr. Special
Director General (Eastern Command) BSF at Kolkata. The pre-
confirmation petition came to be dismissed by the Special Director
General BSF (Confirming Authority) vide order 29th June 2019 and as
such confirmed the dismissal of the petitioner from the service.
Thereafter on 15th July 2019, the petitioner was no longer a part of 70
Bn BSF.
14. The petitioner on 7th August 2019 preferred a statutory petition
before the Director General11 BSF, in view of directions of GSFC, DG11
“DG” hereinafter
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vide an order dated 4th February 2020 dismissed the aforesaid
statutory petition.
15. Thus, dissatisfied by the order passed by the DG, the petitioner
has filed the present writ petition under Article 226 of the Constitution
of India, seeking for the following relief(s):
“a. Issue a writ in the nature of Certiorari or any other
appropriate writ, quashing the impugned Order dated
04.02.2020, passed by the Director General, Border Security
Force and direct the Respondents to reinstate the Petitioner in
service with all consequential benefits.
b. Pass any such other or further orders in favour of the
Petitioner as this Hon’ble Court may deem fit and proper.”
16. Ms. Deepika Mishra, learned counsel appearing on behalf of the
petitioner would submit that SCOI had already adjudicated the matter
on merits immediately after the incident i.e. on 30th November 2010
and during the proceedings before SCOI, evidence of 23 witnesses
along with 16 exhibits was recorded. Only after the examination of the
evidence on record, SCOI submitted its report and categorically
opined that the statements of civil witnesses are contradictory and do
not corroborate with each other with regards to the presence of BSF
Personnel near the house of Mr. Khokha Mia. Further, SCOI also
opined that there is also no evidence on record for wrongful restraint
caused to the complainant by any of the BSF personnels.
17. The learned Counsel strenuously argued that the report
submitted by the SCOI was placed before the DIG, BSF and the DIG
endorsed the view of SCOI. It is apposite to set out remarks of the
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DIG, BSF respectively:
“I agree with the PO that keeping in view the circumstantial
evidence CT. Sheelendra Kumar did not try to commit rape of
XXXX which is alleged by civilians. The intention of the civilians
of this allegation is to put extreme pressure on BSF”
18. Further, the learned Counsel has referred to the various
questions and answers recorded during SCOI and GSFC proceedings
to argue that the complainant and her brothers i.e Mr. Abdul Kalam
and Mr. Badshah Mia did not identify the petitioner in the proceedings
before SCOI and ROE which happened immediately after the accident
but the petitioner was suddenly identified by the aforementioned
during GSFC proceedings after a gap of 9 years.
19. The learned Counsel has buttressed her submissions on the
premises that, the findings recorded by GSFC are erroneous inasmuch
as GSFC has misread the statement of BSF personnel CT Santosh
Kumar Jat PW-3 and has concluded that the area near Amzadnagar
was fully fenced. Even though, CT Santosh Kumar (PW-3) in his
cross-examination clearly and unequivocally stated that the area near
Amzadnagar was not completely fenced which was further confirmed
by one Mr. Mukesh Kumar (PW-14) who is a Coy Clerk and was in
charge of the documents on the date of the armed altercation.
20. It has been further submitted by the learned Counsel that, the
GSFC erred in observing that the petitioner was not a member of
special team constituted to prevent smuggling in the border area.
Learned Counsel drew this Court‟s attention to statement of ASI Ram
Dev Singh (DW-3) and the testimony of Coy Commander Inspector
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Brahm Prakash, both of whom categorically stated that petitioner was
a member of special task force who was assigned the specific task of
curbing smuggling activities.
21. Further, Ms. Mishra drew this Court‟s attention to the
statements made by CT Santosh Kumar Jat and Mukesh Kumar (PW-
14) wherein it is categorically mentioned that there were injuries on
the hand of the petitioner and the petitioner‟s uniform was torn and
scratches could be seen on the body of the petitioner. Therefore, it is
evident that the petitioner was involved in an altercation and sustained
serious injuries as a result thereof.
22. Furthermore, it was submitted by the Counsel that it is a matter
of record that the father of the complainant, Mr. Khokha Mia was
accidentally shot and succumbed to his injuries on the same day and
allegation of molestation of the daughter of Mr. Khokha Mia is an
attempt to falsely implicate the petitioner as result of the same.
23. Per Contra, Ms. Richa Dhawan, learned SPC, submits that
petition is liable to be dismissed inasmuch the same sets out no valid
grounds which may warrant judicial review and the sentence awarded
to the petitioner is not disproportionate to the offence committed by
the petitioner and the present case is not that typical case, wherein this
court should entertain any judicial review in GSFC proceedings.
24. The learned Counsel has buttressed her submissions on the
premise that GSFC trial was conducted strictly in accordance with
Rule 45 (1) (i) of the BSF Act and Rules, wherein witnesses were
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examined and documents have been exhibited and the GSFC has
given an well-reasoned order on specific findings.
25. Learned SPC, further contends that the petitioner was awarded
full opportunity of defending himself and no violation of natural
justice or legal procedure has been demonstrated.
26. The counsel further contends that the GSFC has meticulously
analyzed the oral and documentary evidence, and the findings arrived
are detailed, well-reasoned and are based on corroborated facts and as
such the impugned order does not call for any interference by this
Court. Even though 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.
27. Ms. Dhawan has submitted that in a case of judicial review of
the GSFC proceedings, the petitioner must demonstrate that the
punishment imposed or the procedure adopted was so unreasonable or
unjust that it shocks the judicial conscience of the Court, and that there
was a violation of the principles of natural justice.
28. 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 GSFC under BSF Act and
rules ought to be examined.
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29. The GSFC proceedings are amenable to the High Court‟s power
of superintendence and are unquestionably subject to judicial review
under Article 226 of the Constitution. Interference is, however
justified only where: (a) the court-martial is improperly convened or
constituted; (b) mandatory statutory procedure or principles of natural
justice are violated; or (c) the findings are perverse, i.e. wholly
unsupported by evidence or against the weight of evidence. This
doctrine has been consistently affirmed by the Supreme Court and
several High Courts.
30. Recently, this Bench, while outlining the scope & extent of
judicial interference in matters where the trial has been conducted by
the GSFC, referred to a judgment of Coordinate Bench of this Court in
the matter of Deshraj v Director Gen. B.S.F. & Anr12, decided on 13th
May, 2025. In that judgement, the Court, inter-alia had relied upon a
decision of the Division Bench of the Gauhati High Court in Director
General, Border Security Force & Ors. v Iboton Singh (KH)13
observing as follows:
“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 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 a12
W.P.(C) 768/2007
13
2007 SCC OnLine Gau 419
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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.”
31. Further, in Syed Yakoob v. K.S. Radhakrishnan & Ors.14, the
Supreme Court has expounded the limits of the High Court‟s
jurisdiction to issue a writ of certiorari under Article 226. The relevant
paragraphs are reproduced below:
“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
14
1963 SCC OnLine SC 24
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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 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
Vishnu Kamath v. Syed Ahmad Ishaque, Nagandra Nath Bora v.
Commissioner of Hills Division and Appeals Assam 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 misinterpretation 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
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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. 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.”
32. Thus, this Court is clear in its mind that, while exercising its
power under Article 226 of the Constitution against the proceedings or
orders passed pursuant to the GSFC trials, which are conducted under
the BSF Act, it must remain conscious of the self-imposed limitations
on its jurisdiction. This power of judicial review enjoins upon and
confines its scope to examine only the correctness of the decision
making process and the fairness of the procedure adopted and not the
examination of the decision per se. The Supreme Court in B.C.
Chaturvedi v UOI & Ors.15, has outlined the 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,15
(1995) 6 SCC 749
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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
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.”
33. Notwithstanding the procedural latitude available to military
courts, the provisions of the Indian Evidence Act regarding relevance,
admissibility, burden, and standard of proof guide the Inquiry.
Therefore, the GSFC bears the same responsibility as an ordinary
criminal court to safeguard the rights of the accused and ought to be
guided by the fundamental principles of criminal jurisprudence.
34. This Court, therefore, confines itself to examining whether the
decision-making process is vitiated by illegality, irrationality,
procedural impropriety, or perversity.
35. The foundational basis of the disciplinary action against the
petitioner, in the present case, rests upon the allegation of sexual
misconduct, as stated by complainant in complaint. The principal
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question that arises for consideration is whether the disciplinary
findings, based solely on the allegation of sexual misconduct as
levelled by the complaint, are sustainable in law. While it is well
settled that in appropriate cases, the statement of the complainant may,
if found credible and consistent, form the sole basis for adverse action
but it remains incumbent upon the Court to assess whether the
conclusions drawn by the disciplinary authority are supported by
cogent reasoning and as to whether the material relied upon for
arriving such decision inspires confidence, and most importantly,
whether the proceedings as a whole satisfy the minimum standards of
procedural fairness and reasonableness.
36. At this stage, it is pertinent to state the relevant portion of
statement of complainant and Mr. Badshah Mia in a comparative chart
at the various level of proceedings.
SCOI ROE GSFC
I cannot recognise him as I hereby identify
XXXX he was covering his face that
with a piece of cloth. person presently
Q. Do you recognize His face was covered sitting in the Court
anyone of them(BSF with a piece of cloth, so, as accused no.2.
personnel) I couldn‟t recognise the
BSF personnel. I kept on resisting
Ans. No, I did not accused no.2 and in
pay that process, the
any attention. cloth with which he
has covered his face
got removed and I
saw his face.
I saw the face of
accused no.2 for the
first time when he
was beating my
brother Abdul
kalam.
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BINA AKHTAR I heard the shout of I heard the voice of
I heard the shout of people and came outside my elder brother
my brother Abul my house and then I Abdul kalam
Kalam and I came heard the sound of a shot shouting loudly.
outside my house (firing of weapon) and At that time, I was
hearing his shot. then I went to see at the inside our house. I
I saw my brother spot of incident and I came out and went
bleeding from head found that my father was towards rubber
and I then became laying there on the plantation which
unconscious. Two ground with a shot on his was behind our
ladies from my head. My brother Abdul house. On reaching
house came and took kalam was not present there, I saw my
me to my house and there. brother. He was
brought having injuries on
me back into his hands and head.
consciousness. I then He was bleeding
came out of the from the head. He
house on the main told me that he had
road and then heard been hit by
a gun shot. someone.
At that time some Thereafter, he fell
members of the unconscious. I
public told me that shouted for help. On
my father khokha hearing my voice,
mia was shot dead as my father, Khokha
I then went to that Mia came out of his
place where my shop which was near
father was lying our house and
down. reached on the spot
inside the rubber
plantation. He asked
me to go and shut
his shop. I followed
his direction. When
I was returning to
the place of incident
after closing the
shop, I heard a
sound of gunshot
being fired. I ran
towards my house.
In between, I was
informed by the
villagers that my
father Khokha Mia
had been shot.
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BADSHAH MIA I was watching television While I was inside
at home and my father our house, I heard
I was working in the was at the shop near our loud voices from sal
fields. At that time I house. Then I heard the plantation near our
heard some shouting of my sister house. I went to the
commotion at a Tulu Akhtar from road near sal
distance of 100 yards outside. Then my father plantation. My
where my father called me and I went father Khokha Mia
khokha mia was also outside and along with was already present
present. I saw the my father. I can‟t there. I asked him as
BSF person l recognise the BSF person to what has
ragging my father who pulled my sister as happened. My father
from the rubber his face was covered told me that my
plantation owards with a cloth. brother Abdul kalam
the road. I went up has been beaten. I
to the BSF personnel hereby identify
and requested them those two BSF
not to shoot but they personnel sitting in
did not listen to me the Court as accused
and fired at my no.2 and 3.
father on his
forehead, the same
bullet also hit me.
37. The statements recorded by the complainant, Mr. Badshah Mia
and Mr. Abdul Kalam before the SCOI and before GSFC further
complicate the narrative. Insofar as the contention of the learned
counsel for the petitioner, regarding there being material
contradictions in the witness statement is concerned, this Court finds
that there is cogent evidence on record to show that there are material
contradictions in the statements of the complainant, Mr. Badshah Mia
and Mr. Abdul Kalam. At this stage, it is pertinent to note that the
complainant, Mr. Badshah Mia and Mr. Abdul Kalam did not identify
the petitioner in the proceedings before SCOI, where the evidence was
being recorded immediately after the date of the said incidence, but
miraculously identified the petitioner during the proceedings before
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GSFC after a gap of almost 9 years. Therefore, the statements made
by complainant, Mr. Badshah Mia and Mr. Abdul Kalam lack
coherence when juxtaposed with the statement made before the SCOI
initially. These discrepancies are not minor inconsistencies and go to
the root of the cause as they may not be attributable to lapse of
memory or emotional distress since it is the matter of fact that
statement before SCOI proceedings happened immediately after the
incident whereas the GSFC proceedings happened 9 years after the
incident. Furthermore, no plausible explanation has come from the
side of complainant for not identifying the petitioner earlier when the
memory is fresh but only being able to identify him 9 years after the
accident. Therefore, this Court is of the view that the omission of core
facts, which would reasonably be expected in a genuine narration,
detracts from the reliability of the statements of the complainant, Mr.
Abdul Kalam and Mr. Badshah Mia and raises serious doubt about the
veracity of the complainant‟s version.
38. A close scrutiny of the evidence, particularly the statements of
the complainant, Mr. Abdul Kalam and Mr. Badshah Mia recorded
before the GSFC, discloses material omissions and contradictions that
seriously undermine the complainant‟s case. Rather, they go to the
root of the allegation and are indicative of an evolving version of
events, which militates against the credibility of the witness.
Therefore, this Court is of the considered opinion that the allegations,
emerging from the complaint and subsequent statement, suffer from
material inconsistencies and omissions, and do not inspire confidence
so as to justify the adverse conclusion arrived against the petitioner.
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39. The Supreme Court in B.S. Hari v. Union of India & Ors16
reiterated that the High Court, while exercising jurisdiction under
Article 226 of the Constitution, is empowered to examine whether the
findings recorded are based on any rational evidence or whether the
proceedings stand vitiated by perversity, arbitrariness, or procedural
unfairness. The constitutional power of judicial review is not fettered
by technicalities and may be invoked where injustice is apparent on
the face of the record.
40. It is also material to note that in cross-examination of CT.
Santosh Singh Jat and Mukesh Kumar, it is categorically stated that
the area near Amzadnagar, where the said incidence occurred is not
completely fenced. Hence, it is a plausible to infer that the area near
Amzadnagar is prone to cattle smuggling since the area is not
completely fenced. The relevant extracts of cross examinations of
Santosh Singh Jat PW-3 and Mukesh Kumar PW-14 are reproduced
below:
“Mukesh Kumar PW-14
CROSS EXAMINATION BY THE DEFENDING OFFICER
Accused No. 02 was performing GD duties at BOP
Amzadnagar.
It is correct to suggest that there was a special task force
constituted at Coy level which used to carry out special operations
to prevent cattle smuggling etc. in the Coy AOR.
Complete AQR of ‘D’ Coy was not fenced at the time of this
incident. There were 02-03 unfenced gaps of about 400-500 yards
in the Coy AOR.
Santosh Kumar Jat Kumar PW-14
The fencing work was under progress in its AOR. Also, the AOR
of BOP Amzadnagar was a smuggling prone area. Khokha Mia,16
(2023) 13 SCC 779
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resident of village Amzadnagar in the AOR of 168 BOP
Amzadnagar, was a known smuggler of that area. Earlier, Khokha
Mia was residing near the international boundary ahead of the
proposed fencing alignment, later, he, along with his family,
shifted to Indian side of the fencing while ‘D’ Coy was deployed at
BOP Amzadnagar.”
41. Further, it has come on record that Mr. Khokha Mia and his
family, including the complainant were involved in smuggling
activities and his name finds mention in both police and BSF records.
This lends credence to the version put forth by the defense regarding
the incident of smuggling and retaliatory attack by the villagers. In
contrast, the complainant‟s version of events alleging outraging the
modesty of the complainant in broad daylight, amidst a hostile crowd
during a state of commotion where gunshots were fired, appears
highly improbable and difficult to believe.
42. The Constitution Bench of the Supreme Court in S.N.
Mukherjee v. Union of India17, has categorically held that while
courts-martial are not required to record detailed reasons for their
findings or sentence, their proceedings are nonetheless subject to
judicial review under Article 226 and Article 32 of the Constitution.
The Court observed that such review is permissible in cases where the
proceedings are vitiated by legal or procedural infirmities, or where
fundamental right is infringed. It was further held that although the
court-martial is a specialized forum, its decisions are not beyond the
pale of constitutional scrutiny, especially where there exists an error of
law apparent on the face of the record, or where the finding is
manifestly perverse or arbitrary. The relevant portion of the said
17
(1990) 4 SCC 594
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judgment is reproduced below:
“42. Before referring to the relevant provisions of the Act and the
Rules it may be mentioned that the Constitution contains certain
special provisions in regard to members of the Armed Forces.
Article 33 empowers Parliament to make law determining the
extent to which any of the rights conferred by Part III shall, in their
application to the members of the Armed Forces be restricted or
abrogated so as to ensure the proper discharge of their duties and
the maintenance of discipline amongst them. By clause (2) of
Article 136 the appellate jurisdiction of this Court under Article
136 of the Constitution has been excluded in relation to any
judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the
Armed Forces. Similarly, clause (4) of Article 227 denies to the
High Courts the power of superintendence over any court or
tribunal constituted by or under any law relating to the Armed
Forces. This Court under Article 32 and the High Courts under
Article 226 have, however, the power of judicial review in respect
of proceedings of courts martial and the proceedings subsequent
thereto and can grant appropriate relief if the said proceedings have
resulted in denial of the fundamental rights guaranteed under Part
III of the Constitution or if the said proceedings suffer from a
jurisdictional error or any error of law apparent on the face of the
record.”
43. Applying the said principle to the facts of the present case, this
court finds that the conviction of the petitioner is founded solely on
the testimony of the complainant, Mr. Abdul Kalam and Mr. Badshah
Mia, which, for reasons already noted above, is riddled with
inconsistencies, material contradictions, and unexplained
improvements. In absence of any corroborative material or forensic
evidence, the findings of guilt appear not only legally unsustainable
but also perverse. Glaring irregularities between the statements
recorded by the complainant, Mr. Abdul Kalam and Mr. Badshah Mia
before SCOI and GSFC which go to the root of the matter, cannot be
overlooked by this Court while exercising its writ jurisdiction.
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44. In the present case, the contradictions noted herein are neither
incidental nor superficial, they pertain to essential aspects such as the
identity of the petitioner, and the absence of any spontaneous or
consistent account of events. These material inconsistencies
substantially erode the credibility of the complainant‟s version and
render the findings of guilt against the petitioner unsustainable in law.
45. Having noted the infirmity in the reasoning adopted in the
GSFC proceedings, the punishment imposed cannot be held legally
sustainable. Accordingly, the next question that arises for
determination is the nature of relief warranted in facts and
circumstances of the present case. This Court finds guidance in the
judgement of the Supreme court in Ranjit Thakur Vs Union of
India18, wherein it was held that strikingly disproportionate
punishment justifies judicial interference and such punishment cannot
be allowed to stand uncorrected in exercise of Judicial. In Andhra
Pradesh Industrial Infrastructure Corporation Limited v S N Raj
Kumar19, the Supreme Court held:
“20…. In the realm of Administrative Law “proportionality” is a
principle where the court is concerned with the process, method or
manner in which the decision-maker has ordered his priorities and
reached a conclusion or arrived at a decision. The very essence of
decision-making consists in the attribution of relative importance
to the factors and considerations in the case. The doctrine of
proportionality thus steps in focus true nature of exercise — the
elaboration of a rule of permissible priorities [Union of India v. G.
Ganayutham, (1997) 7 SCC 463: 1997 SCC (L&S) 1806]. De
Smith [Judicial Review of Administrative Action (1995), para
13.085, pp. 601-605; see also, Wade: Administrative Law (2009),
pp. 157-158, 306-308.] also states that “proportionality” involves
“balancing test” and “necessity test”. The “balancing test” permits18
(1987) 4 SCC 611
19
(2018) 6 SCC 410,
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scrutiny of excessive onerous penalties or infringement of rights or
interests and a manifest imbalance of relevant considerations.”
46. In the absence of direct and cogent evidence against the
petitioner, the punishment imposed appears unduly harsh. Therefore,
in the considered opinion of this Court, the impugned order dated 4th
February 2020 is legally unsustainable and stands vitiated by serious
infirmities. This Court notes that the Trial had been pending for the
last 15 years and while under normal circumstances, remanding the
matter to GSFC might have been an appropriate course of action, the
prolonged delay, the petitioner‟s advancing age and the findings
arrived at hereinabove persuade this Court to refrain from doing so.
47. Therefore, in the exercise of extraordinary jurisdiction under
Article 226 of the Constitution, this Court is compelled to intervene to
prevent a palpable miscarriage of justice and as such for all the
aforesaid reasons, the writ is allowed. As a sequel, the impugned
order dated 4th February 2020 is hereby quashed and set aside with
consequential reliefs. The petitioner shall stand exonerated of all
charges and be reinstated to the post from which he was dismissed.
The petitioner shall be entitled to all consequential service benefits on
a notional basis from the date of dismissal till the date of
reinstatement, including continuity of service for all purposes,
restoration of seniority, and fixation of pay with notional increments,
as if no break in service had occurred. These notional benefits shall be
reckoned for the purposes of pension, gratuity, and other terminal
dues, subject to any lawful adjustment or verification but shall not
entail payment of back wages or arrears of salary for the intervening
period.
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48. Necessary consequential orders shall be issued and the notional
benefits accorded to the petitioner within a period of four
weeks from the date of this judgment.
49. All pending application(s), if any, stand disposed of.
OM PRAKASH SHUKLA, J.
C. HARI SHANKAR, J.
AUGUST 13, 2025/AT
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