Calcutta High Court (Appellete Side)
Union Of India & Ors vs Mudrika Singh on 18 December, 2018
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
17.
18-12-2018
debajyoti
FMA No.859 of 2010
Union of India & Ors.
Vs.
Mudrika Singh
Mr. Somnath Bose,
Ms. Sumitra Das,
Ms. S. Midya
... For the Appellants.
Mr. Subrata Mukherjee
... For the Respondent/Writ Petitioner.
The appeal is directed against a judgment and order of May 07, 2009 passed on the respondent's writ petition challenging the decision of a Summary Security Force Court (SSFC) of the Border Security Force as affirmed by the appellate authority.
The charge against the petitioner was of sodomy. However, what appears from the complaint and the reference in the records may not amount to sodomy as the complaint was that the petitioner, while on duty, caught hold of the penis of a colleague.
Upon the complaint being received, the Commandant required a record of evidence to be prepared. This, the Commandant was well within his rights to do under Rule 45 of the BSF Rules, 1969 formulated under the BSF Act of 1968. Rule 45 of the Rules, as it stood then, permitted four options under sub-rule (2) thereof to the Commandant: to award any 2 punishment; or dismiss the charge; or require a record of evidence to be prepared; or remand the accused for trial by a Summary Security Force Court.
Upon the evidence being recorded and the matter being placed before the Commandant, Rule 51 of the said Rules, as it stood then, came into play. Again, sub-rule (2) thereof gave four options to the Commandant: to dismiss the charge; or rehear the charge and award any summary punishment; or try the accused by an SSFC; or apply to a competent officer or authority to convene a court for the trial of the accused. There was no fifth option open to the Commandant upon the record of evidence being prepared and presented before him. Yet, the Commandant in this case purported to direct the fresh recording of evidence. The Court of the first instance found that this was not within the powers of the Commandant and one of the grounds for setting aside the ultimate punishment was such impropriety on the part of the Commandant and the resultant illegality in the procedure adopted.
Indeed, it is evident that Rule 51 of the said Rules has subsequently been amended and what was previously included in Rule 51(2) of the said Rules has now become, in substance, Rule 51(3) of the amended Rules. A new sub-rule (2) has been introduced which provides as follows:
"(2) if the Commandant considers the evidence recorded insufficient but considers that further evidence may be available, he may remand the case for recording additional evidence."
The incorporation of such amendment demonstrates that at the relevant point of time, the Commandant did not have the 3 power to direct additional evidence to be recorded. At the same time, the amendment can be regarded to be clarificatory in nature, in the sense that it was not required to be specifically provided but was inherent to the general authority of the Commandant; and the amendment has been brought by way of abundant caution and to clarify the powers of the Commandant instead of conferring any new authority unto such officer.
There is no submission which has been put forth by either side to throw any light on the relevant provision. In such circumstances, the view taken by the Court of the first instance appears to be a possible view and, thus, does not call for any interference on such count.
Further, what weighed with the Court of the first instance was that even though the respondent herein preferred an appeal under Section 117 of the Act, there was no discussion regarding the evidence or any matter by the appellate authority save recording that everything was in order. Indeed, it may also be noticed that Rule 148 of the said Rules, as it stood at the relevant point of time, required the SSFC to "give his opinion as to whether the accused is guilty or not guilty of the charge or charges." Rule 149 of the said Rules requires the finding on every charge upon which an accused is arraigned to be recorded simply as "Guilty" or "Not Guilty".
Even if it is accepted that the finding may not indicate any further, the verdict referred to in Rule 148 requires some modicum of reasons or discussion notwithstanding the fact that it may be a summary court that delivers the verdict. Some form of application of the mind to the matters in issue must be 4 reflected in the verdict since the decision is capable of visiting a perceived delinquent with the gravest of consequences.
In addition, Rule 151 of the Rules requires reasons to be given for awarding a sentence when a finding of guilty is returned against the accused on any of the charges upon which the accused is arraigned. There may be a range of sentences that may be passed and some reasons ought to indicate why a particular sentence was passed in preference to the others in a given situation.
There does not appear to be any record of any verdict in the pleadings. The relevant document was not disclosed by the BSF in its affidavit or supplementary affidavit before the Court of the first instance. The original records have been carried to this Court and since the matter pertains to Article 226 of the Constitution, technicalities have been brushed aside to look into the records. The records reveal an alarming story. There is a printed form which provides for some blanks and two or three lines to be added at the foot of a section intituled "Verdict". As to the sentence, most of the matter is printed with a few blanks for the Presiding Officer to fill up and again no more than a line or two by way of additional space.
It is inconceivable, even in a disciplined force as the BSF, that decisions can be made on the ipse dixit of the superior officers when such officers are required to indicate some modicum of reasons for finding a person guilty and furnish some reasons to indicate why a mode of punishment was chosen ahead of the others. It is accepted that if much time is wasted on disciplinary proceedings and recording reasons in a disciplined 5 force, the primary object of such force may be lost, but Article 14 of the Constitution requires every decision to be informed and even though one may not expend tomes in support of a particular decision, when the decision is unsupported by any reason altogether, disciplined force or not, such decision will fall foul of Article 14 of the Constitution.
For the reasons indicated in the judgment and order impugned and the additional reasons supplied, the verdict and the order of punishment cannot be sustained and FMA 859 of 2010 is dismissed.
There will be no order as to costs.
As a consequence, the respondent employee will be entitled to all the benefits as if the complaint was never made and no order adverse to the employee was passed on the relevant complaint. The necessary action should be taken by the BSF authorities within the next three months.
Urgent certified website copies of this order be immediately made available to the parties subject to compliance with all requisites formalities.
( Sanjib Banerjee, J. ) ( Suvra Ghosh, J. )