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Rajesh Kumar Yadav, Ac vs Union Of India And Others on 31 May, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Amit Bansal

$~13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 5592/2021 and CM No. 17434/2021 (for stay)
     RAJESH KUMAR YADAV, AC                             ..... Petitioner
                      Through: Dr. Abhay Kant Upadhyay, Adv.

                          versus

     UNION OF INDIA AND OTHERS                ..... Respondents
                    Through: Mr.Naginder Benipal and Ms.Harithi
                             Kambiri, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
              ORDER

%             31.05.2021
[VIA VIDEO CONFERENCING]

1. The petitioner, an Assistant Commandant in the respondent BSF, has filed this petition, (i) impugning the order dated 24th May, 2021 convening a General Security Force Court (GSFC) trial against the petitioner with effect from 31st May, 2021; (ii) seeking stay of the said trial; (iii) seeking a direction to the respondents to adjourn the trial at least for three months or till restoration of normalcy in the prevalent pandemic; and, (iv) seeking permission to be defended by a Defending Officer and defence counsel of his choice.

2. The petition came up first before us on 28th May, 2021 (29th May, 2021 and 30th May, 2021 being Saturday and Sunday, respectively) when it was the contention of the counsel for the petitioner that he be permitted to defend the petitioner virtually in GSFC trial being held at Siliguri. However, the counsel for the respondents appearing on advance notice on that date did not have instructions. Finding, that the charge on which the W.P.(C) 5592/2021 Page 1 of 3 petitioner had been ordered to be tried was of defalcation of public monies, though the matter was posted for today but it was made clear that the pendency of this petition shall not come in the way of GSFC proceeding further w.e.f. today as scheduled.

3. The counsel for the respondents today informs, (i) that the petitioner had submitted three choices of Defending Officers and the name of the present counsel for the petitioner who is seeking to represent the petitioner virtually from Allahabad, did not figure in the said three names; (ii) that of the three names given, two refused to represent the petitioner and the third was not relieved by his unit for the purposes of defending the petitioner; (iii) that the respondents have thus appointed another Defending Officer for the petitioner; and, (iv) that the respondents have no objection to the counsel for the petitioner participating virtually in the trial from Allahabad, as sought.

4. However the counsel for the petitioner now turns turtle and states that he does not want to represent the petitioner virtually from Allahabad but wants to proceed to Siliguri, to physically represent the petitioner and seeks adjournment of the trial by 3-4 days to enable him to so travel from Allahabad to Siliguri.

5. The counsel for the respondents states that the GSFC trial is scheduled from today and normally takes place day to day and cannot be adjourned.

6. Even otherwise the conduct aforesaid of the petitioner, of first wanting to derail the trial on the grounds of Covid and by seeking representation virtually and now wanting adjournment to enable the counsel to travel to Siliguri, does not inspire confidence.

7. We are thus not inclined to order adjournment of the trial scheduled.

It cannot be lost sight of that once a trial is scheduled, the witnesses are summoned and made to travel from their respective posts/units for the purposes of examination and on such specious grounds, trial cannot be adjourned.

8. The counsel for the petitioner on asking, what has changed materially in the last two days, states that the counsel has now decided to travel to Siliguri to physically participate in the GSFC trial.

9. The petition is thus disposed of, permitting the petitioner to be represented virtually by Dr. Abhay Kant Upadhyay, Advocate from Allahabad and if the trial is not completed today, Dr. Abhay Kant Upadhyay, Advocate would be at liberty to travel to Siliguri to join the trial physically on whichever date it is adjourned to.

10. Dr. Abhay Kant Upadhyay, Advocate for the petitioner states that the petitioner does not want Mr. Marut Sharan Pandey, Deputy Commandant, appointed as Defending Officer of the petitioner, to represent the petitioner in the trial.

11. We may record that no arguments have been made challenging the Convening Order on merits, though the same has been challenged in the petition.

12. The writ petition is disposed of.

RAJIV SAHAI ENDLAW, J AMIT BANSAL, J MAY 31, 2021 SU W.P.(C) 5592/2021 Page 3 of 3