Calcutta High Court (Appellete Side)
Mudrika Singh vs Union Of India & Ors on 7 May, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P.No.25014(W) of 2006
Mudrika Singh
-vs-
Union of India & Ors.
Mr. Subrata Mukherjee ............for the petitioner
Mr. Sudhakar Biswas .............for the respondents
Heard on : May 7, 2009 Judgment on : May 7, 2009 The Court : The petitioner in this writ petition dated November 17, 2006 is questioning the order of the DIG/Chief Law Officer (D&L) for Director General, BSF dated October 18, 2006, Annexure P5 at p.30, and the order of the Commandant, 72 BN BSF dated August 7, 2006, Annexure P3 at p.25.
By his order the commandant enforced the punishment of reduction to the rank of constable inflicted on the petitioner by the summary security force court, and by the order dated October 18, 2006 the higher authority, modifying the punishment, inflicted three lesser punishments: (i) forfeiture of five years' service for the purpose of promotion,
(ii) forfeiture of seven years' past service for the purpose of pension, and (iii) severe reprimand.
On April 16, 2006 the petitioner was working as a head constable in 72 BN of the BSF. By an order dated May 2, 2006, Annexure P1 at p.23, the commandant of the battalion detailed one U.N. Prasad, Deputy Commandant of the unit, to prepare a record of evidence against the petitioner in connection with the allegation that by a disgraceful conduct of an unnatural kind he committed an offence within the meaning of s.24(a) of the Border Security Force Act, 1968. The order dated May 2, 2006 was presumably made in exercise of power conferred on the commandant by r.45 of the Border Security Force Rules, 1969. The detailed officer was directed to prepare the record of evidence complying with r.48 of the rules. He prepared the record of evidence and submitted it to the commandant.
Then the commandant issued an order dated June 10, 2006, Annexure R1 at p.9, detailing one Vijay Dimri, A.C. of the unit, asking him to prepare additional record of evidence. After the officer detailed by the order dated June 10, 2006 submitted the additional record of evidence prepared by him, the commandant made an order dated August 3, 2006, Annexure P2 at p.24, convening a summary security force court for trying the petitioner. Copies of record of evidence, additional record of evidence and the charge-sheet were supplied to the petitioner. The summary security force court convened on August 7, 2006 held that the petitioner was guilty of the charge, and it inflicted on him the punishment of reduction to the rank of constable. The punishment was inflicted presumably according to s.48 of the Act.
Feeling aggrieved by the order of punishment passed by the summary security force court the petitioner presented a petition to the director general of the force under s.117 of the Act. By the order dated October 18, 2006 the petition was disposed of. The authority concluded that there was sufficient evidence in support of the charge brought against the petitioner. However, considering the petitioner's unblemished service for more than twenty-two years and the twenty-one rewards to his credit, the authority held that taking a lenient view the punishment should be modified, and accordingly he inflicted the three lesser punishments noted hereinbefore. Feeling aggrieved the petitioner filed this writ petition.
The order of the authority disposing of the s.117 petition is not a detailed one. He did not discuss the evidence stated to have proved the charge against the petitioner. He only noticed that a fair procedure was followed. Without discussing the evidence he turned down the petitioner's contention that there was no evidence to prove the allegation made against him. He simply said that there was sufficient evidence in proof of the allegation.
In my opinion, by not dealing with the petitioner's contentions, making a reference to the evidence, the authority failed to discharge his duty. Since he was empowered to make such order in the petition as he thought fit, for all purposes he was actually exercising the appellate power, and this is apparent from the order he made modifying the punishment inflicted by the summary security force court, and inflicting lesser punishments. The failure, in my view, has vitiated the order dated October 18, 2006 by a jurisdictional error.
In view of my foregoing finding, I would have remitted the matter to the competent authority to give a fresh decision in the s.117 petition. But another very important question of jurisdiction in connection with the steps taken by the commandant has been raised by the petitioner, though for the first time in this court. I think, because of the nature of the contention that has the potentiality to go to the root of the matter, it is necessary to entertain and examine the contention.
Relying on the decision dated August 8, 2003 I gave in W.P.No.19460(W) of 2001 (Prakash Singh v. Union of India & Ors.), Mr Mukherjee, counsel for the petitioner, has argued that the decision of the summary security force court, based on the additional record of evidence that was prepared in compliance with the order of the commandant dated June 10, 2006, is incurably vitiated by a jurisdictional error, because the commandant possessed no power to make the order detailing a second officer to prepare an additional record of evidence.
Mr Biswas, counsel for the respondents, has said that in view of the provisions of r.6 of the rules, and the circumstances under which the order directing preparation of the additional record of evidence was made, it cannot be said that the commandant did not have the requisite power to issue the order dated June 10, 2006 detailing a second officer to prepare an additional record of evidence against the petitioner.
After the record of evidence was prepared and submitted by the officer detailed by the commandant by his order dated May 2, 2006, the commandant was to proceed according to the provisions of r.51 of the rules. Rule 51 is set out below :
"51. Disposal of case against an enrolled person by Commandant after record or abstract of evidence. -(1) Where an officer has been detailed to prepare the record of evidence or to make an abstract thereof he shall forward the same to the Commandant.
(2) The Commandant may, after going through the record or abstract of evidence -
(i) dismiss the charge, or
(ii) rehear the charge and award one of the summary punishment, or
(iii) try the accused by a Summary Security Force Court where he is empowered so to do, or
(iv) apply to a competent officer or authority to convene a court for the trial of the accused."
Rule 6 of the rules is set out below:
"6. Case unprovided for. - In regard to any matter not specifically provided for in these rules it shall be lawful for the competent authority to do such thing or take such action as may be just and proper in the circumstances of the case."
The question is when the provisions of r.51 did not empower the commandant to make an order asking the detailed officer or detailing a second officer to prepare additional record of evidence, whether in view of the provisions of r.6 he could make an order for the purpose. I am unable to agree with Mr Biswas that in view of the provisions of r.6 the commandant was empowered to make the order dated June 10, 2006 detailing a second officer for preparation of an additional record of evidence against the petitioner.
The provisions of r.6 apply only when in regard to any matter, not specifically provided in the rules, the circumstances of the case require a competent authority to do something or take some action. Here it has been specifically provided in r.51 what the commandant can do after preparation and submission of the record of evidence against an enrolled person. Hence, when r.51 specifically provided what the commandant was empowered to do, relying on the provisions of r.6, he could not do a thing not provided by r.51. He could not confer upon himself an additional power not conferred on him by the provisions of r.51.
It is also to be noted that the power to order recording of further evidence has been conferred only on a superior authority. The relevant provision is r.59. In a case where the commandant decides, according to r.51(2)(iv), to apply to a competent officer or authority to convene a court for the trial of the accused, the competent officer or authority, on receipt of the application, can exercise any of the powers mentioned in r.59, one of the powers is to return the case for recording further evidence, if he considers the evidence record insufficient, but considers that further evidence may be available. Hence the questions whether the record of evidence against the petitioner was insufficient and whether further evidence was likely to be available, could be decided, if at all, only by a competent officer or authority under r.59, on an application by the commandant according to r.51(2)(iv) for convening a court for the petitioner's trial, and not otherwise.
There is no dispute that, in this case, after the additional record of evidence was submitted to him by the officer detailed by the order dated June 10, 2006, the commandant decided to try the petitioner by a summary security force court. It is not the case that the additional record of evidence was not considered by the summary security force court.
The additional record of evidence has not been produced with the pleadings, though an order dated June 24, 2006, Annexure R1 at p.9, issued by the commandant cautioning the officer detailed by him to prepare the record of evidence against the petitioner has been produced to show that the decision to detail the second officer to prepare the additional record of evidence was taken only for ascertaining the actual date of the incident. Mr Biswas has produced the additional record of evidence prepared by the officer detailed by the order dated June 10, 2006, and I find that this officer recorded evidence of the same witnesses twice over, - a thing that no authority is empowered to order.
It is evident that the commandant decided to order preparation of the additional record of evidence, since the record of evidence prepared was insufficient to prove the charge levelled against the petitioner. He usurped the power of the superior authority under r.59, and that too for a wrong purpose - to give the already examined, cross- examined, and re-examined prosecution witnesses to depose again in proof of the allegation against the petitioner, not to collect further evidence, which could only be new evidence.
The summary security force court has not recorded any reason to support its conclusion that the evidence adduced by the prosecution witnesses proved the charge levelled against the petitioner. It is, therefore, not known to anyone considering what evidence the summary security force court reached the conclusion that the petitioner was guilty of the offence.
However, two things are very clear: (i) the record of evidence prepared by the officer detailed by the commandant by his order dated May 2, 2006 was insufficient to prove the charge; and (ii) preparation of additional record of evidence was ordered with a view to giving the already examined, cross-examined and re-examined prosecution witnesses a second chance to prove the charge, - a blatant illegal act. The authority deciding the s.117 petition has not said either that the record of evidence prepared according to the order of the commandant dated May 2, 2006 was sufficient to prove the charge against the petitioner.
I am, therefore, of the view that the decision of the summary security force court is vitiated by an incurable illegality, since it is presumably based on the additional record of evidence prepared in terms of the commandant's order dated June 10, 2006 that he issued without jurisdiction. The decision relied on by Mr Mukherjee fully supports the case of the petitioner.
For these reasons, I allow the writ petition and set aside the order dated October 18, 2006 made in the s.117 petition, order of the commandant dated August 7, 2006 and the decision of the summary security force court holding that the petitioner is guilty of the offence. The respondents are directed to give the petitioner all consequential benefits according to the rules, regulations and instructions that are applicable to the case. There shall be no order for costs.
Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.
(Jayanta Kumar Biswas, J) sb