Jammu & Kashmir High Court
Union Of India & Ors vs Kaushalaya Devi And Ors on 11 November, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 297 OF 2001 Union of India & ors Petitioners Kaushalaya Devi and ors Respondent !Mr. Ajay Sharma, CGSC ^Mr. B. B. Kotwal, Advocate. Honble Mr. Justice M. M. Kumar, Chief Justice. Honble Mr. Justice Hasnain Massodi, Judge Date: 11.11.2013 :J U D G M E N T :
Per Massodi, J
1. Late Shamsher Singh husband of respondent no. 1 and father of respondents 2 to 4 was enrolled in Border Security Force as Constable in 1970. After serving the Force for a little more than 11 years, he was tried by Summary Security Forces Court on following charges:-
i) That he at 2230 hours on 28th May, 1982 entered into Family Quarter no. 40 and used criminal force to Smt. Saroj Devi W/o No. 76001187 Constable Shiv Narain intending to outrage her modesty while her husband was away on duty.
ii) That he at 2200 hours on 28th May, 1982 while posted in SP Coy improperly brought a civilian named Dewan Singh 2 S/o Macchi Singh to his family quarter placed out of bound.
iii) That at 0945 hours on 28th May, 1982 he was found in unauthorized possession of two cottons of Bicat Strips and 7.62 empty case on search of his house by HC Mukhtiyar Singh Offg.
BHM.
2. The Summary Security Forces Court (hereinafter referred to as SSF Court) was held on 09.06.1982 at Headquarters of 14 Bn. BSF and was presided over by Shri G.B. Singh, Commandant 14th Bn. BSF. S/Shri Murugappan AC (TCH) 40 Bn. BSF and SI Amarjeet Singh No. 79002032 40 Bn. BSF acted as interpreters and Shri Chhering Ram AC 40 Bn. BSF as friend of the accused (Late Constable Shamsher Singh). The accused was brought before the Court. The chargesheet was read over and explained to the accused and the accused was asked as to whether he pleaded guilty. The accused pleaded guilty to all the charges. The accused was further asked as to whether he wanted to make any statement in reference to the charge or investigation or punishment or whether he wanted to call any witness as to character or in his defence. He opted not to make any statement or call any witness as to character or call any 3 witness in his defence. The proceedings were closed on 09.06.1982 itself and the accused sentenced to undergo 6 months rigorous imprisonment in Civil Jail and dismissed from the service. The sentence awarded was reviewed by Deputy Inspector General of Border Security Force (Reviewing Officer) and countersigned by him, whereafter it was confirmed by the Inspector General of Board Security Force. Late Shamsher Singh made a representation against his conviction and sentence awarded, to Director General Border Security Force, Ministry of Home Affairs, New Delhi. His representation did not find favour with the Authority and was rejected on 14.11.1983.
3. Late Shamsher Singh questioned the order of SSF dated 09.06.1982 whereby he was convicted and sentenced to six months rigorous imprisonment and dismissed from service, in writ petition being SWP no. 307/1984. The case set up was that the SSF Court was not properly constituted and that he was not allowed proper assistance during the trial before the Court and the safeguards laid down under the Border Security Forces, Act and Rules made thereunder were observed in breach.
4. The writ Court vide judgment dated 17.05.2001 allowed the writ petition and quashed the SSF Court 4 proceedings, giving liberty to the respondents to proceed in the matter afresh in accordance with rules. The writ Court was of the opinion that SSF Court violated mandate of Rules 142 and 143 of the BSF Rules rendering proceedings liable to be quashed. The writ Court reproduced Rules 142 and 143 to highlight the safeguards available to an accused under the Rules.
5. The Court pointed to failure on part of the SSF Court to make accused aware of the effect of the plea of guilt, the difference in procedure in case the plea of the guilt was made and failure to read and explain translated version of the evidence or its abstract to the accused. The writ Court was of the opinion that as the SSF Court had failed to specifically and expressly certify that all the steps mapped out in Rules 142 and 143 of BSF Rules were taken, it was to be presumed that Rules 142 and 143 were observed in breach. The writ Court arrived at the conclusion that Rules 142 and 143 were not followed, inasmuch as, the SSF Court proceedings concluded within one hour and ten minutes i.e. 10.00 A.M to 11.10 A.M.
6. The writ Court judgment is called in question by the Union of India in present Letters Patent Appeal on the grounds that the writ Court erroneously assumed the 5 mandate of Rules 142 and 143 not to have been complied with, only because a detailed certificate to that effect was not recorded by SSF Court. It is pleaded that in terms of Rule 153, BSF Rules authenticity of the proceedings is to be presumed once the Presiding Officer of the SSF Court puts his signature on the proceedings and certifies compliance with the relevant rules. Reliance placed by the learned Single Judge on Union of India v. XHavaldar Clerk Prithpal Singh 1991 KLJ 513, according to the appellant, is misplaced as the case has no relevance to the controversy reflected in the writ petition before the Court. The appellant also takes exception to the presumption drawn by the learned Single Judge as regards non-compliance of the mandatory provisions because of short duration of the Court Martial sitting/session. It is pointed out that once the petitioner before the Court pleaded guilty to all the charges, the proceedings were not to take much time to get concluded.
7. We have gone through the order of the learned Single Judge as also the record of the writ Court. We have heard learned counsel for the parties.
8. The SSF Court, in the event accused person pleads guilty to a charge, before recording plea of guilty, in 6 terms of Rule 142, BSF Rules, 1969 is to ascertain that the accused understands the nature of the charge to which he has pleaded guilty and 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 difference in procedure that the plea of guilty would make. The Court is further under an obligation to advise the accused to withdraw the plea if appears from the record or abstract of evidence or otherwise that the accused ought to plead not guilty. Once the plea of guilty is recorded after adhering to the requirements laid down under Rule 142, the Court in terms of Rule 143 (2) is to read the abstract of evidence, annex it to the proceedings to enable it determine the sentence to be awarded and also to enable the Reviewing Officer to know all the circumstances connected with the offence.
9. In the present case, SSF Court was convened in open and S/Shri Murugappan AC (TCH) 40 Bn. BSF, SI Amarjeet Singh No. 79002032 40 Bn. BSF acted as interpreters and Shri Chhering Ram AC 40 Bn. BSF as friend of the accused attended the trial, when the Court was assembled. It was in their presence that the accused was brought before the Court. The Court after following the procedure laid down in Rules 136 to 138 proceeded 7 to record the plea of guilty or not guilty. The SSF Court at the foot of the proceedings certified that Rule 142 BSF Rules, 1969 was complied with. In the Verdict of the Court the minutes of the proceedings are stated to have been read and the sentence awarded after taking all relevant factors into consideration including previous conviction, sentence, if any, undergone, general character, age and service particulars. The record/abstract of evidence stands annexed with SSF Court proceedings. The requirements of Rules 142 & 143 (2) BSF Rules, therefore, stand complied with and the material placed on record, to determine the sentence and also to enable the Reviewing Officer to know all the circumstances connected with the offence.
10. The SSF Court either under Rules 142 or 143 BSF Rules, 1969 is not required to append a certificate to the SSF Court proceedings, certifying therein step by step compliance with Rules 142 and 143 BSF Rules. It would suffice to certify that the Rules have been complied with without going to the details like the Court having ascertained whether the accused understands the charge or difference in procedure in case of plea of guilty was no made. A certificate or endorsement at the foot of the proceedings certifying compliance with the Rules would 8 bring within its sweep compliance with all the components of the safeguards available to the accused under Rules 142 and 143 BSF Rules. The Writ Court, therefore, erred while opining that in absence of a certificate by SSF Court, certifying compliance with each and every component of the aforesaid safeguards, violation thereof was to be presumed
11. The writ Court was also not right in rushing to the conclusion that Rules 142 and 143 (2) BSF Rules are to be presumed to have not been observed in view of short session of SSF Court extending to 01 hour and 10 minutes. It is to be noticed that before the SSF Court was convened Record of Evidence in terms of Rule 48 was directed. The evidence was recorded in presence of the accused and he was allowed to cross examine the witnesses. As per record made available by the respondents, the accused made use of the opportunity to cross examine some witnesses. The accused also made his statement. In the said background, the accused being aware of evidence against him and also for the reason that the accused pleaded guilty would not take much time by the SSF Court to read the record or abstract of evidence and annex it to the proceedings. The proceedings, therefore, could have been concluded within 9 01 hour and 10 minutes, leaving no scope for the presumption, as one drawn by the writ Court.
12. The writ record and the SSF Court record available on the file as already discussed, on a closer look reveal that Rules 142 and 143, BSF Rules have been adhered to in letter and spirit. The accused was not prejudiced at any stage in the proceedings before SSF Court. The writ Court was not right in concluding that Rule 142 BSF Rules 1969 made it mandatory to record a detailed certificate, certifying compliance with each and every safeguard laid down under Rule 142 BSF Rules, 1969 and that Rules 142 and 143 BSF Rules were not complied with by the SSF Court.
13. For the reasons discussed above, we find merit in the appeal. The appeal is, accordingly, allowed. The writ Court order is set aside.
14. Record be send down.
(Hasnain Massodi) (M.M. Kumar) Judge Chief Justice Jammu 11.11.2013 Parshant