Punjab-Haryana High Court
Thawar Singh vs Union Of India And Another on 15 January, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JANUARY 15, 2010
Thawar Singh
.....Petitioner
VERSUS
Union of India and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. R. S. Chahal, Advocate,
for the petitioner.
None for the respondents.
****
RANJIT SINGH, J.
The petitioner, working as Head Constable in Border Security Force (for short, "BSF"), was tried by Summary Security Force Court for an offence under Section 41(e) of the Border Security Force Act (hereinafter referred to as "the BSF Act") with the allegation of accepting sum of Rs.78000/- from three candidates as bribe for their enrollment as Constable in BSF. Upon being found guilty of the charge, was sentenced to suffer one year rigorous imprisonment in Civil Jail and dismissal from service. He has accordingly impugned his trial and award of sentence through the present writ petition.
The challenge to the Summary Security Force Court (for CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 2 }:
short, "SSFC") proceedings has been made on grounds which are short and blissfully vague. These have been pressed in this manner during the course of arguments. The submission is that the petitioner has been sentenced through an order, which is a non-speaking one and carries no reason in support. It is further pleaded that the impugned order is passed in violation of rules of natural justice and also in violation of the provisions of the Constitution. Except for baldly stating so, no averment is made how and which principle of natural justice was violated while passing the impugned order. It is also not elaborated in any manner as to how the order would suffer on the ground that it is a non speaking order and whether there is any such requirement of passing a speaking order under the provisions of the BSF Act. In addition, it is again crisply averred that the provisions of Rule as applicable to the SSFC Court were not complied without making any mention as to which provision was not so complied with. The writ petition is bereft of any ground, which could have been answered in any positive manner and the grounds of challenge have been made without making any reference to the Rule position or law, which was violated while conducting the SSFC proceedings.
In the reply filed, it is pointed out that the petitioner was tried by SSFC for the offence under Section 41(e) for accepting a sum of Rs.78000/- from three candidates, namely, Satbir, Krishan Lal and Harish Kumar for their enrollment as Constables. The petitioner was placed under arrest as per the Rules on 15.4.1997. It is also pointed out that the record of evidence was directed to be prepared where the statements of four witnesses were recorded. Subsequently, the petitioner and his co-accused were attached with CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 3 }:
15 Battalion BSF, Hisar. It is also pointed out that statements of 7 prosecution witnesses were recorded in the presence of the petitioner during SSFC trial, where he was given full opportunity to cross-examine the witnesses. The petitioner did not produce any witness in his defence. The petitioner was thereafter found guilty and awarded the sentence as stated. The averments made by the petitioner that the provisions of the BSF Act were violated while holding the trial and that order is non-speaking one are denied by averring that there is no provision, which will require the Security Force Court to give reason while giving finding or order sentencing the petitioner. It is also stated that all Rules relevant and applicable were duly complied with while holding the trial of the petitioner, where the petitioner was given full opportunity to defend himself.
During the course of arguments, learned counsel for the petitioner could not substantiate the grounds of challenge raised by him except for simply stating that the impugned order is a non- speaking order and was passed in violation of principle of natural justice. Except for precisely so stating, no other argument was advanced. He could not point out any provision under the BSF Act which required assigning of reasons while passing an order by a Security Force Court. The counsel could not state as to which principle of natural justice was violated.
It is seen from the record that when this case came up for hearing before this Court in the year 2002, this Court vide order dated 29.7.2002, after making reference to the law laid down in the case of Lt.Col.Prithipal Singh Bedi Vs. Union of India and others, AIR 1982 Supreme Court 1413, and noticing the amendment made CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 4 }:
in the provisions of the Army Act, observed that desirability of amending the provisions of BSF Act on the lines of the Army Act to assign reason in support of finding can not be ignored. However, at the same time, it was noticed that till the amendment is made, order passed by the Security Force Courts while exercising powers under the BSF Act may not be liable to be set-aside on this ground. The relevant observations made by this Court in its order dated 29.7.2002 are as under:-
"Counsel for the respondents submits that pursuant to the judgment of the Supreme Court, amendments have been made in the Army Act, no amendment has been carried out in the Border Security Force Act. It is not disputed that Border Security Force Act has been borrowed from the Army Act and if certain safeguards have been incorporated in the Army Act pursuant to observations of the apex Court, there is no reason why the same should not be followed by other armed forces/Para military forces. Counsel for the respondents relies on Union of India Versus Amrik Singh, A.I.R 1991 SC 564, wherein it was held that there was no statutory requirement of giving any reasons. No doubt, it is so, but the observations of desirability of amendment cannot be ignored even though, till the amendment is made, order may not be liable to be set-aside in absence of reasons."
The case accordingly was adjourned to have the views of the respondents in this regard. It was then pointed out before the Court that Ministry of Home Affairs had issued a gazette notification CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 5 }:
bearing SO-2032 dated 7.7.2003 published in the Gazette of India, Part II, Section 3, Sub-Section (ii), amending sub-rule (1) of Rule 99 of the Border Security Force Act Rules, 1969, making it mandatory to record reasons in support of finding of guilty or not guilty. Thus, after this amendment, recording of reasons in support of the finding would be mandatory. However, prior to this amendment the law, as was then prevalent, would govern the position. The respondents have referred to the case of Union of India and others Vs. Ex.Constable Amrik Singh. AIR 1991 SC 564, where the Hon'ble Supreme Court dispelled the argument that giving of personal hearing would be necessary to ensure principle of natural justice. This was also a case of a convict under the BSF Act, who had filed the petition to allege violation of principles of natural justice on the ground that he was not given personal hearing while deciding his petition under Section 117(2) of the BSF Act, which related to confirmation of the finding and the sentence. It was viewed that giving of personal hearing was not necessary. While taking this view, the Hon'ble Supreme Court observed that the petitioner was tried by observing due process of law and the verdict of Security Force Court was confirmed and it was only post confirmation petition, which was being considered. In this background, it was observed that every order passed administratively cannot be subjected to rigours of principles of natural justice. In fact, this position has been settled by the Constitutional Bench decision of the Hon'ble Supreme Court in the case of S.N.Mukherjee Vs. Union of India, 1990(4) SCC 594. In this case, the Hon'ble Supreme Court though has held that recording of reason by authority exercising quasi judicial function is a must for its CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 6 }:
decision irrespective of whether the decision is subject to appeal, revision or judicial review but the rule is inoperative where statute dispenses with the requirement expressly or by necessary implication. Dealing specifically with this requirement of recording of reason at the stage of finding or sentence by a Court Martial or at the time of confirmation of the finding or sentence, the Hon'ble Supreme Court has held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority must record the reasons for its decision. It is further held as under:-
"The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 7 }:
the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case."
Having laid this proposition of law, the Hon'ble Supreme Court went ahead to find whether there would be a requirement under the Army Act and the Rules to give reason or the requirement of recording reasons has expressly or by necessary implication being dispensed with. In this regard, it is held as under:-
"A perusal of the provisions of the Army Act and Rules show that at the stage of recording of findings and sentence the court martial is not required to record its reasons. The judge-advocate plays an important role during the course of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its findings after the judge-advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of "guilty" or of "no guilty". It is also required that the sentence should be announced forthwith in open court. Rule 66(1) however requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of findings and sentence."
CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 8 }:
Long ago, the Hon'ble Supreme Court has taken a similar view in the case of Som Datt Datta Vs. Union of India and others, AIR 1969 SC 414 in the following words:-
"Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, we are unable to accept the contention of Mr.Datta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision." (Emphasis supplied) Reference here can also be made to the following observations made by the Hon'ble Supreme Court in the case of Union of India Vs. Col.J.N.Sinha and another, AIR 1971 SC 40:-
"Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak and others V. Union of India, AIR 1970 SC 150, "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law but supplement it.
Xx xx xx xx Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the CRIMINAL WRIT PETITION NO.680 OF 1998 :{ 9 }:
effect of the exercise of that power."
From the above discussion, it would emerge that in cases of special enactments, like the Army Act, all the principles of natural justice cannot be imported. Accordingly, the order of finding returned by the SSFC and the sentence awarded to the petitioner cannot be set aside on the ground that the order does not disclose any reasons.
The submission that the order was passed in violation of the provisions of the BSF Act and the Rules is bereft of any elaboration to invite any serious challenge to the SSFC proceedings. It has otherwise specifically been denied if any provision of the BSF Act or the Rules was violated. A perusal of the reply would also show that the petitioner was dealt with under the BSF Act by following due procedures. The record of evidence was prepared and was supplied to the petitioner. He was then charge sheeted for an offence which is an offence under the BSF Act, for which he was liable to be tried by Security Force Court. The evidence statedly was recorded by the Security Force Court as well where due opportunity was given to the petitioner to cross-examine the witnesses. In this background, it can not be said that any of the provisions of the BSF Act or principle of natural justice were violated to call for any interference in the Security Force Court proceedings or the finding and sentence awarded by it. There is, thus, no merit in the petition.
The same is accordingly dismissed.
January 15, 2010 ( RANJIT SINGH ) khurmi JUDGE