Gauhati High Court
No. 870025895 Constable Prafulla Kr. ... vs The Union Of India & Ors on 19 July, 2011
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 3491/2007
No. 870025895 Constable Prafulla Kumar Nath,
A Coy, 47 Bn BSF,
S/o. Shri Krishna Kingkar Nath,
R/o. Vill. & PO. Howly,
Dist. Barpeta, Assam.
............Petitioner.
-Versus-
1. The Union of India, through the Secretary,
Ministry of Home Affairs, Govt. of India,
New Delhi - 110001.
2. The Director General, Border Security
Force, New Delhi.
3. The Inspector General, BSF, West Bengal.
4. The Deputy Inspector General, HQ 47 Bn
BSF, Maheshpur, Raiganj, West Bengal.
5. The Commandant, 47 Bn, BSF, Maheshpur,
Raiganj, West Bengal.
...........Respondents.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the Petitioners : Mr. M.H. Ahmed, Adv.
For the Respondents : Mrs. B.Das, CGC.
Date of hearing &
Judgement : 19.07.2011.
WP(C) 3491 of 2007 Page 1 of 11
JUDGEMENT AND ORDER (ORAL)
The petitioner is aggrieved by the Annexure-3 order dated 10.05.2007, passed by the Commandant, 47 Bn, BSF, by which he has been dismissed from service, having found guilty of the charge leveled against him. The petitioner was tried by Summary Security Force Court, held at Bn. HQ 47 Bn. BSF on 10.05.2007, purportedly for committing offence under Section 40 of the BSF Act, 1968. The particulars of the charge are as under :-
"U/S 40 of BSF Act 1968 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that he, At BOP Kukradha during the month of Dec 2006 while was performing Border duty in „A‟ Coy, improperly visited the house of Miss Rena Begum, D/o. Late Sh Latif, r/o. Village Baragachhla and made illicit relation with her by giving assurance to marry her whereas he was already married. Thus bringing bad name to the Force."
2. A Court of Enquiry was ordered by the Commandant, 47 Bn., BSF on 1.4.2007 to find out the factual position of the purported complaint lodged against the petitioner, pursuant to which the aforementioned charge was framed against him. In the Court of Enquiry, the petitioner was found blameworthy and thereafter an Officer was detailed WP(C) 3491 of 2007 Page 2 of 11 to prepare Record of Evidence on the aforesaid charge framed under Section 40 of the BSF Act. According to the BSF authority, such conduct on the part of the petitioner was prejudicial to good order and discipline of the Force.
3. On the basis of the facts brought on record in the Court of Enquiry and records of evidence, the petitioner was tried by Summary Security Force Court (SSFC) on 10.5.2007 for purported commission of offence under Section 40 of the Act. As noted above, prior to the SSFC trial, which was held on 10.5.2007, a Court of Enquiry and record of evidence under Section 40 of the BSF Act and Rules were conducted to find out the factual position of the case. According to the BSF authority, a prima facie case having been found against the petitioner, a formal order for assembly of SSFC for trial of the petitioner was issued.
4. The petitioner was issued with the letter dated 9.5.2007 indicating the date of assembly of the SSFC on 10.5.2007. The letter was issued to the petitioner by the Commandant, 47 Bn, B SF. According to the respondents, the petitioner was found guilty of the charge on the basis of the evidence on record and thereafter was dismissed from service. Be it stated here that the petitioner was placed under close arrest on 11.4.2007 as per provisions of BSF Rules. As WP(C) 3491 of 2007 Page 3 of 11 regards the punishment of dismissal from service, the respondents have justified the same and have stated that the punishment of dismissal from service was imposed as per Section 48 of the BSF Act, 1968.
5. The charge against the petitioner has been noted above. According to the petitioner, the charge even if it is taken on its face value, could not have led to initiation of a proceeding in SSFC. It is the stand of the petitioner that he had a good relationship with the girl in question and he never indulged in any kind of indiscipline warranting any proceeding against him. It is the stand of the petitioner that since he was under close arrest, he did not get adequate opportunity to defend his case and that the respondents in a most arbitrary and illegal manner, dismissed him from service.
6. In the counter affidavit filed by the respondents, they have justified their action. It is the stand of the respondents that the petitioner being a married person ought not to have indulged in illicit relationship with another girl alluring her of marriage. According to the respondents, such conduct on the part of the petitioner was unbecoming of a member of the disciplined force.
7. I have heard Mr. M.H. Ahmed, learned counsel for the petitioner as well as Mrs. B. Das, learned CGC.
WP(C) 3491 of 2007 Page 4 of 11I have also perused the SSFC proceedings file pertaining to the petitioner.
8. There is nothing on record to show that any complaint was lodged against the petitioner in respect of the charge leveled against him. However, in the counter affidavit, the respondents have enclosed a copy of the complaint purportedly lodged by one Smt. Sufia Begum. As per the said complaint, the petitioner promising to marry the girl in question remained with her for 7 days and thereafter declined to accept her. The story narrated in the complaint and the charge framed against the petitioner are distinct and different. Moreover, the complaint annexed to the counter affidavit does not form part of the proceeding.
9. On perusal of the SSFC proceeding file, what is noticed is that during Court of Enquiry, certain evidence was taken including that of the alleged victim girl. Although, it was alleged that the petitioner had taken the girl to his native place and stayed there for five days but as per the own showing of the respondents and as reflected in the proceeding file during the course of recording of evidence, in absence of any specific date or documentary evidence establishing petitioner's non-presence in Company / mode of leave, etc. availed of by him, the Commandant himself recorded the finding that on WP(C) 3491 of 2007 Page 5 of 11 record the charge of remaining away from duty alongwith the girl for five days could not be established.
10. It is true that some of the witnesses during the course of recording of evidence stated about the affair that developed between the petitioner and the girl. It is not case of the petitioner marrying another girl during the subsistence of his earlier marriage. As per the charge, no marriage took place between the petitioner and the girl but the petitioner only visited the house of the girl and made illicit relation with her. Other segment of the charge is that he had assured the girl to marry although he was already a married person with children.
11. After recording of the evidence, the matter was placed for SSFC trial, which was held on 10.5.2007. On perusal of the proceeding file, what is found is that the petitioner was informed to the SSFC proceeding to be held on 10.5.2007 on 9.5.2007. Thus, on the very following day of furnishing such information, the SSFC proceeding was held. There is nothing to show that during the SSFC proceeding, witnesses were further examined or the petitioner was allowed the opportunity to cross examine them.
12. Interestingly, on the date of the proceeding i.e. 10.5.2007, the charge sheet was read out to the WP(C) 3491 of 2007 Page 6 of 11 petitioner and he was put the question "How say you No. 870025895 Constable Prafulla Kumar Nath 47 Bn BSF. Are you guilty or not guilty of the charge?"
In reply to the said question, the word "Guilty" was recorded with the following addition.
"The accused having pleaded guilty to all the Charges, the Court explains to the accused the meaning of the charge to which he has pleaded guilty and ascertains that the accused understands the nature of the charge to which he has pleaded guilty. The Court also inform the accused the general effect of the plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge and the effect of his plea of guilty, accepts and records the same.
The provisions of BSF Rule 142(2) are complied with."
13. Similarly, question No. 2 and 3 along with their answers were recorded as follows :-
"Q. No.2 Do you wish to make any
Question to statement in reference to the
The accused charges or in mitigation of
Punishment ?
Ans No.2
Answered by "No"
The Accused
Q. No.3 Do you wish to call any
Question to witness as to Character ?
The Accused.
Ans No.3
WP(C) 3491 of 2007 Page 7 of 11
Answer by "No"
The Accused"
14. On both the aforesaid two documents, there is no signature of the petitioner accepting the plea of guilty and answers to question No. 2 and 3.
15. The authority simply by recording the above quoted portion after the word "Guilty" recorded compliance of Rule 142(2) of the BSF Rules. For a ready reference, Rule 142 is quoted below :-
"142. General plea of „Guilty" or "Not Guilty". - (1) The accused person‟s plea of "Guilty" or "Not Guilty" (or if he refuses to plead or does not plead intelligibly either one or the other), a plea of "Not Guilty"
shall be recorded on each charge.
(2) If an accused person pleads "Guilty", that plea shall be recorded as the finding of the Court ; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and or the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or other wise that the accused ought to plead not guilty.
(3) Where an accused pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the WP(C) 3491 of 2007 Page 8 of 11 accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plea thereto, and a record to that effect shall be made in the proceedings of the Court."
16. As per requirement of Rule 142 (2) of BSF Rule 1968, if an accused person pleads guilty ; that plea shall be recorded as the finding of the Court ; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and or the difference in procedure which will be made by the plea of guilt and shall advise to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.
17. In the instant case, except mechanical recording of the above quoted portion recording compliance of requirement of Rule 142(2), nothing is discernible that the petitioner was apprised of the consequence of pleading guilty. On perusal of the entire material, what is seen is that authority just on a sheet of paper recorded the answers by hand (red ink) below the typed questions, in which signatures of WP(C) 3491 of 2007 Page 9 of 11 neither the petitioner nor the BSF authorities, which conducted the SSFC proceeding appear.
18. Having regard to the totality of the circumstances and the nature of the charge leveled against the petitioner, I am of the considered opinion that it was an act of over enthusiasm on the part of the BSF authority. The girl herself did not lodge any complaint. Merely because the petitioner purportedly maintained a relation with the girl and had visited her house, same by itself cannot, in my considered opinion, constitute a conduct leading to SSFC proceeding. There is nothing to show that such conduct on the part of the petitioner in any manner attracted indiscipline in the Force. It was an act in isolation in the particular place of posting of the petitioner.
19. During the course of recording of evidence, certain statements of witnesses were recorded and thereafter on the basis of such evidence, SSFC proceeding was ordered on 9.5.2007. On the very next day i.e. 10.5.2007 the SSFC proceeding was drawn up and on the plea of acceptance of guilt by the petitioner, the proceeding was closed with awarding of penalty of dismissal on the petitioner on the same very day i.e. 10.5.2007. Thus, the entire proceeding was vitiated not only by error of WP(C) 3491 of 2007 Page 10 of 11 judgement but also by way of procedural irregularity in conducting the same.
20. For all the aforesaid reasons, I am inclined to accept the writ petition by granting the prayer made therein. Consequently, the impugned order of dismissal from service dated 10.5.2007 imposed on the petitioner stands interfered with and the same is set aside and quashed. Consequently, the petitioner shall be entitled to get reinstatement in service, without however, any arrear salary.
21. Writ petition is allowed to the extent indicated above. There shall be no order as to costs.
JUDGE Sukhamay WP(C) 3491 of 2007 Page 11 of 11