Delhi High Court - Orders
Sanjay Yadav vs Union Of India & Anr on 4 June, 2021
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Amit Bansal
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5897/2021
SANJAY YADAV ..... Petitioner
Through: Dr. S.S. Hooda, Adv.
Versus
UNION OF INDIA & ANR. ..... Respondents
Through: Major Sahil Sharma on behalf of
respondents.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 04.06.2021 [VIA VIDEO CONFERENCING]
1. This petition has been listed on urgent mentioning and has been received in this Court post Court commencement hours.
2. A General Security Force Court (GSFC) to try the petitioner, a Deputy Inspector General (DIG) in the respondents Border Security Force (BSF), was convened vide order dated 21st May, 2021. The GSFC assembled at Kolkata on 1st June, 2021. The petitioner has opted for Commandant Anant Singh posted at Sector Hqrs. Durg, Chhattisgarh to be his defending officer. The respondents BSF, though in terms of request of the petitioner appointed the said Commandant Anant Singh as the defending officer of the petitioner, but subject to the condition that the said Commandant Anant Singh participates in the GSFC proceedings virtually from Durg, Chhattisgarh, where he is posted.
W.P.(C) 5897/2021 Page 1 of 63. The petitioner, on 1st June, 2021, when the GSFC assembled, represented for allowing Commandant Anant Singh to be physically present at the GSFC proceedings at Kolkata to defend the petitioner. It was/is the contention of the petitioner, that the defence of the petitioner would be handicapped/prejudiced if the defending officer is not permitted to participate in the GSFC proceedings physically. The reasons given were/are,
(i) frequent breaks in network and difficulties in connectivity; (ii) the proceedings of the GSFC being not audible all the time to the defending officer connected virtually; (iii) the defending officer, without being personally present being unable to assess the demeanour of the witnesses being examined; (iv) difficulties in communication required during the cross examination, between the petitioner and his defending officer; and, (v) the petitioner and the defending officer being unable to, during the cross- examination of the witnesses of the respondents BSF, being unable to confer in private, beyond the hearing of others. It is also the argument of the counsel for the petitioner, that when all others including the prosecuting officer are permitted to remain present physically during the hearing, the denial of physical presence to the defending officer is discriminatory.
4. Major Sahil Sharma of the respondents BSF appears on advance notice and states that the petitioner, besides opting for Commandant Anant Singh as defending officer, has also engaged one Mr. Manu Yadav, Advocate as his defence counsel and who also is connecting in the GSFC proceedings virtually. It is contended that this petition is thus only intended to derail the GSFC proceedings scheduled next on 7th June, 2021. It is further stated that Commandant Anant Singh is posted at a sensitive W.P.(C) 5897/2021 Page 2 of 6 position, in a Naxalite infested area and cannot be relieved from his duties to represent/defend the petitioner.
5. It is further the case of the petitioner that the members of the GSFC were convinced with the representation of the petitioner but instead of allowing physical participation of the defending officer of the petitioner, referred the matter to the authority, which had convened the GSFC and which convening authority, on 2nd June, 2021 rejected the said request of the petitioner.
6. The counsel for the petitioner, with respect to Mr. Manu Yadav, Advocate states that he was made to appear as defence counsel of the petitioner temporarily, on one date only and will not be otherwise representing the petitioner before the GSFC. The counsel for the petitioner has also drawn our attention to Rule 63 of the Border Security Force Rules 1969, to contend that the respondents are bound to relieve the defending officer from whatsoever other duties he may be performing.
7. However we are unable to find in Rule 63, any right in the petitioner to appoint any officer of BSF as his defending officer and any right for the said officer to be made available to defend the petitioner even at the cost of official duties which he/she may otherwise be performing or required to perform.
8. We have asked Major Sahil Sharma, whether the respondents BSF are willing to allow the physical presence of the aforesaid Mr. Manu Yadav, Advocate or any other defending officer who may be available.
9. The answer is in the affirmative.
W.P.(C) 5897/2021 Page 3 of 610. Once it is so, the question is of Commandant Anant Singh being relieved from Durg, Chhattisgarh and not of physical presence. Once he is relieved from Durg, Chhattisgarh for the purposes of defending the petitioner, there is no objection to his physical participation in the GSFC proceedings at Kolkata.
11. Undoubtedly there are some limitations in virtual hearing. Two of us also, holding this Court virtually from our respective residences, are unable to confer during the hearing, as would have been possible during the physical hearing in the Court. However since we sit alone at our respective residences, we are able to use the facility of telephone to confer with each other, by muting ourselves qua others present in the hearing, to ensure that our confabulations are not heard by others. However the petitioner present physically in the GSFC proceedings, cannot confer with Commandant Anant Singh, his defending officer, connected virtually in the said proceedings, without others present in the room where the GSFC is being held, hearing the conversation. The difficulties expressed by the petitioner are thus real and genuine and cannot be brushed away.
12. Unfortunately, the convening authority while rejecting the request of the petitioner for physical presence of Commandant Anant Singh during the GSFC proceedings, has not given any reasons whatsoever. We are thus unable to also know, whether it is possible for Commandant Anant Singh to be relieved from Durg, Chhattisgarh, where he is posted, to defend the petitioner in the GSFC proceedings at Kolkata.
13. We have in this context enquired from the counsel for the petitioner, the length of time, which the trial will require. It is felt that Commandant W.P.(C) 5897/2021 Page 4 of 6 Anant Singh posted in a Naxalite infested area, cannot be away therefrom for long.
14. The counsel for the petitioner states that though there are a large number of witnesses but the material witnesses are only one or two and the petitioner would be satisfied if Commandant Anant Singh is permitted to be physically present during the cross-examination of the said one or two witnesses. It is stated that for the remaining period, the petitioner will make alternate arrangement, either of Mr. Manu Yadav, Advocate or of any other officer who may be already at or be able to travel to Kolkata to represent the petitioner.
15. The aforesaid suggestion of the counsel for the petitioner is found to be reasonable.
16. The petition is disposed of with a direction, (i) to the members of the GSFC and/or to the convening authority, to consider the request of the petitioner for allowing Commandant Anant Singh, being the defending officer of the petitioner, to physically participate in the GSFC proceedings at Kolkata for a maximum period of 10 days during which one or two material witnesses will be cross-examined; (ii) the decision in this regard be taken either on 7th June, 2021 itself or soon thereafter; (iii) during the GSFC proceedings on 7th June, 2021, if any witnesses are to be examined, witnesses other than complainant Constable Bhupender Sharma be examined; (iv) if the request for permitting Commandant Anant Singh to be present personally at Kolkata during the GSFC proceedings is still rejected, members of the GSFC and/or the convening authority shall record and W.P.(C) 5897/2021 Page 5 of 6 provide to the petitioner, the reasons for such rejection and the date for examination of the complainant be fixed at least one week thereafter; in the interregnum, other witnesses can be examined; and, (v) binding the petitioner to the statement aforesaid of his counsel, to, for cross examination of other witnesses, engage some other defence counsel.
RAJIV SAHAI ENDLAW, J AMIT BANSAL, J JUNE 4, 2021 'pp'..
W.P.(C) 5897/2021 Page 6 of 6