Jammu & Kashmir High Court
Satwinder Kour vs Union Of India on 19 March, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No.05
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- SWP No. 1916/2004
IA No. 1/2016
Satwinder Kour, Age 49 years,
Wd/o Late Sh. Gurmit Singh,
R/o Village Panjrukha, P.O. Julajhan,
Teh. Khanna, District Ludhiana (Pb).
....Petitioner
Through: Mrs. Surinder Kour, Sr. Advocate with
Ms. Manpreet Kour, Advocate
Vs
1. Union of India,
through Home Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
2. Director General of B.S.F.,
C.G.O. Complex, Lodhi Road, New Delhi.
3. Inspector General of B.S.F.,
Frontier Headquarter, C/o 56 A.P.O.
4. Deputy Inspector General of B.S.F.,
Sector Headquarter,
Paloura Camp, Jammu.
5. Commandant,
03 Bn. B.S.F., C/o 56 A.P.O.
6. Commandant,
118 Bn BSF C/o 56 APO.
..... Respondents
Through: Mr. Vishal Sharma, DGSI with
Mr. Eishaan Dadhichi, CGSC
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
19.03.2024 2 SWP No. 1916/2004 IA No. 1/2016 (Oral)
01. It is pertinent to mention at the outset that during the pendency of the instant petition, the original petitioner, namely, Gurmit Singh has died (for short "the deceased petitioner"), whereupon his wife the present petitioner, namely, Satwinder Kour came to be impleaded in his place as petitioner.
02. In the instant petition filed under Article 226 of the Constitution, the petitioner beseeches for the following reliefs:-
i) to quash Order dated 20.11.2003 (order has not been served on the petitioner) issued by the Commandant^
3 Bn. BSF, by which the petitioner has been sentenced to suffer rigorous imprisonment for 10 years and also dismissed from service; also to quash Order No.Law/I703-GSFC/GS-118/03-04/3134-38 dated 29/30th January 2004 issued by the D.I.G., by which the reconfirmation petition filed by the petitioner has been dismissed by the respondents being devoid of merit, and also to quash the proceedings of General Security Force Court and the Charges framed against the petitioner, by issuance of Writ of Certiorari;
ii) to issue directions to the respondents to remit the punishment undergone by the petitioner in execution of the order and warrant issued by the respondents, by issuance of Writ of Mandamus;
iii) to issue directions to the respondents to consider the case of petitioner for reinstatement; to allow him to resume/perform his duties on the post of Constable on which he was working prior to the issuance of dismissal order; to release the salary of petitioner and to give all other consequential benefits to the petitioner for which the petitioner is entitled to, as also to treat the period of petitioner with effect from the date he has been dismissed and lodged in the jail to the date the petitioner rejoins the Unit on 'duty' by issuance of a Writ of Mandamus;
iv) to issue directions to the respondents restraining them to treat the period of petitioner with effect from the date he has been dismissed and lodged in the jail 3 SWP No. 1916/2004 IA No. 1/2016 till the date of joining the petitioner on duty as 'break in service' by issuance of Writ of Prohibition;
v) to declare Order dated 20.11.2003 and Order No.Law/1703-GSFC/GS-118/03-04/3134-38 dated 29/30th January 2004; the proceedings of General Security Force Court and the Charges framed against the petitioner as ultra vires, unconstitutional arid contrary to the provisions of BSF Act and Rules and also contrary to the provisions of law, by issuance of Writ of Mandamus;
vi) to issue directions to the respondents to produce all the original record of General Security Force Court proceedings before this Hon'ble Court by issuance of Writ of Mandamus.
03. The background facts under the cover of which the aforesaid reliefs have been prayed by the deceased-petitioner are that he came to be appointed as a Constable in the Border Security Force (for short "the BSF") in the year 1989 and allotted No. 890052116.
04. It has been stated that a charge-sheet dated 16.07.1997 came to be served upon the deceased-petitioner under Section 46 of the Border Security Force Act, 1968 (for short "the Act of 1968") alleging therein that the deceased-petitioner while on duty on 16.03.1997 at Doras Post (Lolab) intruded in the house of one Mohd. Yousuf Ganai, S/o Gaffar Ganai, R/o Village Walkul and fired shots killing number of persons therein, thus, having committed offences under Section 302/449 of the RPC.
05. It has been further stated that the charge-sheet dated 16.07.1997 came to be followed by another charge-sheet for the 4 SWP No. 1916/2004 IA No. 1/2016 same occurrence and allegations on 28.06.2002 and a further charge-sheet dated 09.10.2023 for the same occurrence, incident and offences.
06. It has been also stated that in terms of order dated 18.10.2003 issued by the respondent-Inspector General BSF, the deceased-petitioner was directed to be tried by General Security Force Court (for short "the GSF Court"), whereafter the GSF Court assembled on 20.10.2003 nominating its members and also a Presiding Officer and that upon convening of the said Court, the deceased-petitioner came to be placed under close arrest on 31.10.2003 and during the course of the proceedings conducted by the GSF Court, statements of 24 witnesses came to be recorded as also of the deceased-petitioner, however, without taking oath and in language, the deceased-petitioner never understood.
07. It has also been being stated that one Head Constable Omesh Chand was produced as a defence witness by the deceased-petitioner and that the respondents did not conduct the proceedings of the GSF Court in accordance with the provisions of the Act of 1968 and the Border Security Force Rules, 1969 (for short "the Rules of 1969") and consequently issued order dated 20.11.2003 (for short "the order impugned") sentencing the 5 SWP No. 1916/2004 IA No. 1/2016 deceased-petitioner to rigorous imprisonment for ten years as also directing his dismissal from service.
08. It has further been stated that the witnesses recorded during the court of GSF Court proceedings did not support the prosecution version but the version of the deceased-petitioner that during the course of proceedings before the GSF Court, the prosecution examined Mst. Gajala Tabasum, D/o Late Mohd. Yousuf Gani cited as eyewitness by the prosecution who, however, did not identify the deceased-petitioner and that the statements of the prosecution witnesses were contradictory in nature and did not prove the guilt against the deceased-petitioner and that the GSF Court acquitted the deceased-petitioner of six charges, out of seven charges levelled against him but convicted the deceased-petitioner of one charge on the basis of common allegations without proving the fact that the deceased-petitioner was not on the alleged date of occurrence holding the possession of AK-47 Rifle but SLR Rifle No. 415 issued to the deceased- petitioner.
09. It has also been reiterated that there has been material contradictions in the statements of the witnesses particularly of one Abdul Gaffar and Dr. Mushtaq Ahmed Zargar who conducted the autopsy of the dead persons and that the respondents did not 6 SWP No. 1916/2004 IA No. 1/2016 follow the provisions of the Act of 1968 and the Rules of 1969 in the matter and infact the GSF Court came to be convened by an incompetent officer (DIG), who was officiating as IGP having no power to convene a GSF Court, having no authorization, either from the Central Government or the Director General, BSF.
10. It has also been further stated that during the course of proceedings conducted by the GSF Court, the respondents did not appoint any interpreter for recording the statements of the witnesses as the statements of the witnesses were recorded in Kashmiri language not understandable by the deceased-petitioner and that the respondents convicted the deceased-petitioner for a single alleged act imposing a harsh punishment of imprisonment and dismissal from service disproportionate to the said alleged act.
11. Objections to the petition have been filed by the respondents, wherein it is being stated that in the month of September, 1996, E Coy of 118 Bn BSF was deployed in Lolab area with its Coy HQ at Tekipora and one platoon of Coy was deployed at Doras Post, District Kupwara and that on 16.03.1997 at about 2015 hrs, sentries of Doras Post heard sound of firing and informed all personnel of the post including SI Gulzar Singh, (the Post Commander) and that at around 2100 hrs on 7 SWP No. 1916/2004 IA No. 1/2016 16.03.1997, one surrendered militant, namely, Mohiuddin visited the post and informed SI Gulzar Singh, (the Post Commander) that the militants have shot dead his parents at Village Walkul being about two kilometers from Doras Post, whereafter SI Gulzar Singh along with 08 other personnel and the surrendered militant Mohiuddin left Doras post towards Village Walkul, where they were fired upon by the militants and after retaliating to the said firing and upon reaching village Walkul, SI Gulzar Singh on the instructions of the Deputy Commandant - P. S. Randhawa enquired about the killings of 03 male members and injury of one lady of the same family in village Walkul, which lady subsequently also succumbed to her injuries and during said enquiry found that 04 family members of family, namely, Mohd Yousuf Ganai, Mohd Hanif Ganai, S/0 Mohd Yousuf Ganai, Nazir Ahmed, S/o Yusuf Ganai and Smt Guljan, W/o Mohd Yusuf Ganai were shot dead along with one Police Constable-Mohd Ishaq Bhatt and came to know that surrendered militants, namely, Mohiuddin & Abdul Majid Wani and one Sardar had killed the said family member and that the said surrendered militant Mohiuddin and said Sardar was also involved in the killing of Mohd. Ishaq Bhatt, whereafter the said Sardar was identified as Constable Gurmit Singh (deceased-petitioner) of 118 Bn BSF by Mst. Rafiqa W/o Late Mohd. Ishaq Bhatt. 8 SWP No. 1916/2004 IA No. 1/2016
12. It is being further stated that upon being identified to have killed the aforesaid family members, the deceased-petitioner came to be tried by the GSF Court at 03 Bn BSF, which GSF Court proceedings were conducted with effect from 01.11.2003 to 20.11.2003 and consequently, the deceased-petitioner came to be sentenced to suffer rigorous imprisonment for ten years and also ordered to be dismissed from service.
13. It is being next stated that no procedural irregularity have had been committed by the GSF Court while conducting proceedings against the deceased-petitioner and that in law the GSF Court proceedings including the evidence cannot be re- assessed and re-appreciated by the High Court exercising writ jurisdiction under Article 226 of the Constitution.
14. It is being further stated that before conducting the GSF Court proceedings, summary proceedings were conducted against the deceased-petitioner under Rules 43, 45, 48, 52, 59, 62, 65 & 106 of the Rules of 1969, whereafter the GSF Court proceedings came to be conducted against the deceased-petitioner observing all provisions prescribed under the Act of 1968 and the Rules of 1969.
15. It is being further stated that during the course of the conducting of the proceedings by the GSF Court, 25 prosecution 9 SWP No. 1916/2004 IA No. 1/2016 witnesses came to be examined and their statements recorded. It is also stated that before conducting of the proceedings by the GSF Court, a Law Officer came to be appointed and also appointed Sh. S. S. Dhillon, Deputy Commandant as defending officer for defending the deceased-petitioner in terms of order dated 09.10.2003, besides appointing one CT Mohd. Yusuf Khan as an interpreter for interpreting the statements of the Kashmiri witnesses to which the deceased-petitioner did not object to. It is being stated that on the basis of evidence recorded and the material before the GSF Court, the deceased-petitioner was found to be guilty of one charge out of seven charges being house trespass and consequently came to be sentenced and dismissed from the service in terms of the impugned order, whereafter, the findings of sentence of the GSF Court came to be promulgated by the Commandant on 10.02.2004.
16. It is being further stated that a statutory petition filed by the deceased-petitioner against his conviction and dismissal came to be disposed of by the respondent-Director General BSF in terms of order dated 17/22.03.2005 reducing the sentence of the deceased-petitioner from ten years rigorous imprisonment to six years rigorous imprisonment, while upholding the dismissal of the deceased-petitioner.
10 SWP No. 1916/2004IA No. 1/2016
17. It is being lastly stated that the sentence and dismissal of the deceased-petitioner came to be consequently confirmed by the IG BSF.
Heard learned counsel for the parties and perused the record.
18. Mrs. Surinder Kour, learned senior Advocate appearing for the petitioner while making her submissions in line with the contentions raised and grounds urged in the petition would reiterate that the entire proceedings conducted against the deceased-petitioner by the GSF Court are nullity on account of the non-authorization of the Officer (DIG) to convene GSF Court and would submit that the respondents have not given any satisfactory explanation in their reply as to why the charges framed against the deceased-petitioner initially in the year 1997 came to be reiterated and subsequently drawn and framed in the year 2003. Mrs. Kour, thus, would submit that the entire proceedings of the GSF Court conducted against the deceased- petitioner including the impugned order of sentence and dismissal from service, besides the order of rejection of dismissal of the petition dated 17/22.03.2005, thus, are liable to be quashed.
11 SWP No. 1916/2004IA No. 1/2016
On the contrary, Mr. Vishal Sharma, DSGI appearing counsel for the respondents while opposing the submissions of Mrs. Kour would submit that the GSF Court was convened validly and legally by the DIG in terms of the authorization and produced a copy thereof dated 17.01.1981, a perusal whereof reveals that the said authorization stands issued by the Director General BSF to Inspector General BSF, Jammu in terms of the provisions of the Act of 1968 empowering the Inspector General or any officer subordinate to him not under the rank of DIG to convene a GSF Court for the trial in accordance with the Act of 1968 and the Rules of 1969, of any person, who is subject to the Force Law. The aforementioned order is taken on record.
Mr. Sharma would further submit that insofar as re- serving and redrawing of charge against the deceased-petitioner in the year 2003 are concerned, the same got necessitated on account of the pendency of the criminal case in question before the Court of law, whereupon the case came to be claimed under Section 80 the Act of 1968 from the said Court for conducting of GSF Court proceedings against the deceased-petitioner.
19. In view of the aforesaid response of Mr. Sharma, the aforesaid submissions of Mrs. Kour pale into insignificance. 12 SWP No. 1916/2004 IA No. 1/2016
20. Having regard to the aforesaid position, the Court now would proceed to find out as to whether the respondents have followed the mandate of provisions of the Act of 1968 and the Rules of 1969 while conducting the GSF Court proceedings against the deceased-petitioner and consequently sentencing and dismissing him from service. However, before proceeding further, a reference to following provisions of the Act of 1968 and the Rules of 1969 being relevant to controversy become imperative :-
Section 46 of the Act of 1968 deals with Civil Offences as defined under Section 2 (d) meaning an offence triable by a criminal court and provides that any person subject to the Act, who commits any Civil Offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a Security Force Court and, on conviction, if the offence is one punishable in law by death, shall be liable to suffer such punishment or such less punishment as is in this Act mentioned and in any other case, shall be liable to suffer any punishment assigned for an offence by the law in force in India, or an imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned. 13 SWP No. 1916/2004 IA No. 1/2016
Section 47 of the Act deals with Civil Offences not triable by a Security Force Court and provides that a person subject to this Act, who commits an offence of murder or of culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and not to be tried by a Security Force Court, unless he commits any of the said offences:-
(a) while on active duty; or
(b) at any place outside India, or
(c) at any place specified by the Central Government by notification in this behalf.
Section 64 of the Act deals with the kinds of Security Force Courts and provides that there shall be three kinds of Security Fore Courts, namely :-
(a) General Security Force Courts;
(b) Petty Security force Courts;
(c) Summary Security Force Courts.
Section 72 of the Act deals with the powers of a Security Force Court and provides that a General Security Force Court shall have the power to try any person subject to this Act for any offence punishable thereunder and to any sentence authorized thereby.
14 SWP No. 1916/2004IA No. 1/2016
Section 84 deals with the challenge to the composition of the Security Force Courts and provides that all trials by a General Security Force Court or by a Petty Security Force Court, as soon as the court is assembled, the names of the presiding officer and the members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting in the court and when a challenge is made, the said challenge has to be decided on the objection of the accused person and when no such challenge is made or when a challenge has been made and disallowed, the court has to proceed with the trial of the case.
Section 87 of the Act deals with general rule as to evidence and provides that the Indian Evidence Act, 1872, shall subject to the provisions of this Act, apply to all proceedings before a Security Force Court.
Section 106 of the Act deals with the powers of Security Force Court in relation to proceedings under this Act and provides that any trial by a Security Force Court under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and the Security Force Court shall be deemed 15 SWP No. 1916/2004 IA No. 1/2016 to be a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898.
Section 108 of the Act deals with power to confirm finding and sentence of General Security Force Court and provides that the findings and sentences of General security Force Court may be confirmed by the Central Government or by the officer empowered in this behalf.
Section 117 of the Act deals with remedy against order, finding or sentence of Security Force Court and provides that any person subject to this Act who considers himself aggrieved of any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, providing further that the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of the proceedings to which the order relates, providing further that any person considering himself aggrieved by the finding or sentence of any Security Force Court having confirmed, may present a petition to the Central Government, the Director General or any prescribed authority superior in command to the one who confirmed such finding or sentence, 16 SWP No. 1916/2004 IA No. 1/2016 whereupon the Central Government, the Director General, or the prescribed officer, may pass such order thereon as it or he thinks fit.
Rule 59 and the subsequent rules deals with the convening of a General & Petty Security Force Courts, where as Rule 61 provides for its composition.
Rule 62 provides for the duties of Convening Officer when convening Courts, requiring such Convening Officer to issue a convening order and direct upon what charges the accused is to be tried, as also appoint the members of the court and any waiting members, besides appointing an officer or a counsel assisted by such an officer to prosecute and also to appoint an interpreter wherever necessary and to forward the copies of the charge sheet to the prosecutor convening order, and the original record or abstract of evidence together with an unexpurgated copy thereof, besides forwarding the same to the Law Officer, if any, and has to ensure that the Commandant has summoned the prosecution witnesses and such defence witnesses as the accused may have requested to be summoned.
Rule 63 of the Rules provides for preparation of defence by the accused and provides that an accused who has been remanded for trial, has to be afforded proper opportunity for 17 SWP No. 1916/2004 IA No. 1/2016 preparing his defence and also allowed proper communication with his defending officer or counsel and with his witnesses and such accused person has to be furnished copy of charge-sheet, and an unexpurgated copy of record of abstract of evidence, notice of any additional evidence which the prosecution intends to produce, whereupon the accused has to be explained the charge and also informed that upon his making a written request to his Commandant before 24 hours of his trial requiring the attendance at his trial of a witness whom he desires to call in his defence.
Rule 64 deals with summoning of defence witnesses and provides that the Commandant at request made in this behalf by the accused shall summon such witnesses as are specified by the accused.
Rule 65 of the Rules provides the procedure for Security Force Courts and Rule 66 provides for commencement of trial, requiring that the order convening the Court and the names of the officers appointed to try the accused to be read in the hearing of the accused so that an opportunity is given to the accused to object to any of those officers.
Rule 71 of the Rules provides for arraignment of the accused requiring that the charge to be read to the accused and 18 SWP No. 1916/2004 IA No. 1/2016 to be asked as to whether he pleads guilty or not guilty to the charge.
Rule 72 of the Rules deals with the plea of jurisdiction and provides that the accused before pleading to the charge, may offer a plea regarding the jurisdiction of the court and may, in such a case adduce evidence in support of the plea.
Rule 84 of the Rules deals with opening address and provides that the prosecutor may, if he so desires, and shall, if required by the court, make an opening address explaining the charge and the nature and general effect of the evidence which he proposes to adduce, whereafter the witnesses for the prosecution have to be called and required to give their evidence.
Rule 88 of the Rules deals with the examination of witnesses and provides that the witness may be examined by the person calling him and may be cross-examined by the opposite party to the proceedings, requiring such witnesses before examination to be administered oath or affirmation provided therein the said rule.
Rule 93 of the Rules deals with the case for defence and provides that after the close of the case for prosecution, the presiding officer or the Law Officer (if any) has to explain to the accused that if he wishes, he may give evidence on oath as a 19 SWP No. 1916/2004 IA No. 1/2016 witness or make a statement without being sworn for explaining any circumstances appearing in the evidence against him.
Rule 94 of the Rules deals with the witnesses for defence providing that after compliance of Rule 93, the witnesses for the defence (if any) shall be called to give their evidence.
Rule 95 of the rules deals with witnesses in reply providing that after the witnesses for the defence have given their evidence, the prosecutor may with the leave of the court call a witness or recall a witness to give evidence or any other matter raised by the accused in his defence.
Rule 96 of the Rules deals with the closing address and provides that after the evidence has been given the prosecutor and the accused may each make a closing address to the court.
Rule 97 of the Rules deals with summing up by Law Officer providing that after the closing address, if there is a Law Officer, he shall sum up the evidence and advise the court on the law relating to the case in open court.
Rule 98 of the Rules deals with deliberation on finding and provides that the court shall deliberate on its finding in closed court in presence of the Law Officer. 20 SWP No. 1916/2004 IA No. 1/2016
Rule 99 of the Rules deals with record and announcement of findings, providing that the finding on every charge upon which the accused is arraigned shall be recorded and further requiring the court to give a brief reason in support thereof.
Rule 101 of the Rules deals with the procedure on conviction, whereas Rule 102 of the Rules deals with sentence and provides that if the finding on any charge is 'guilty' then, for the guidance of the court in determining its sentence, and of the confirming authority in considering the sentence, the court before deliberating on the sentence, shall, whenever possible, take evidence of and record the general character, age, service, rank, any recognized acts of gallantry or distinguished conduct of the accused, any previous convictions of the accused either by Security Force Court or a criminal court, any previous punishments awarded to him by the officer, length of time he has remained under arrest or in confinement on any previous sentence and any decoration, or reward, of which he may be in possession or to which he is entitled and whereafter the court has to award a single sentence in respect of all the offences of which the accused is found guilty.
21 SWP No. 1916/2004IA No. 1/2016
Rule 106 of Rules provides for the confirmation and promulgation by the confirming authority upon receiving the record of the proceedings of the court.
21. Reverting back to the case in hand, perusal of the record of the GSF Court would reveal that the respondents commenced the proceedings of the GSF Court at 03 Bn BSF on 01.11.2003 under the command of Sh. Naresh Gaur, DIG/PSO Officiating Inspector General, Baramulla Frontier with its Presiding Officer, Shr. P. J. Sevastian, Additional DIG SHQ BSF, Baramulla and Dr. Surender Kumar Sharma, Commandant 137 Bn BSF, Shri Dashrath S. Rathore, Commandant 133 Bn. BSF, Shri Babu Chandran Nair, 2 I/C 66 Bn BSF and Shri D. S. Rathore, Deputy Commandant 140 Bn BSF as its members with one Shri S. K. Misra, Deputy Commandant (Law) and Shri Subhash Kumar, DC (Law) as officers under instruction with Mr. Sharam Singh, Deputy Commandant 112 Bn BSF as the Prosecutor and Shri S.S. Dhillon, Deputy Commandant 03 Bn BSF as the Defending Officer being legally qualified, besides Shri Hardev Singh Oberoi, Advocate as the defence counsel of the accused. Further perusal of the record of the proceedings of GSF Court reveal that the order of the convening Court, the charge-sheet and the record of evidence came to be laid before the GSF Court announcing the names of the members in the open court.
22 SWP No. 1916/2004IA No. 1/2016
22. Record of the proceedings of the GSF Court would further reveal that the Court in the first instance had asked the accused as to whether he had any objection to be tried by the Presiding Officer or any officer of the Court to which the accused- petitioner reply has been as No, besides having replied as No to the presence of the Steno SI Vinod Kumar of 103 Bn BSF.
23. Record further reveals that the accused came to be arraigned upon each charge to which the accused pleaded not guilty, whereafter the GSF Court proceeded with the trial of the accused-petitioner and examined PW-1 - Subedar Gulzar Singh of 118 Bn BSF and the said witness stands examined by the defence counsel of the accused. Record further reveals that the GSF Court examined PW-2 - HC Manohar Lal of 118 Bn BSF, thereafter PW- 3 - Ravinder Singh (Ex HC), PW-4 - Kushhal Singh (Ex HC), PW-5 Constable Rakesh Kumar of 118 Bn BSF, PW-6 - HC Balwinder Singh of 118 Bn BSF, PW-7 - Mst. Rafiqua, W/o Late. Mohd Ishaq Bhatt, PW-8 Mst. Shahina, D/o Abdul Gani Bhat, PW-9 - Constable/SG Abdul Rashid of JKAP No. 195, PW-10 - Smt. Saida, W/o Abdul Gani Bhatt, PW-11 - Abdul Gani Bhat, S/o Gulam Ahmed Bhatt, PW-12 - Mst. Shakeela, W/o Abdul Rashid Wani, PW-13 - Dr. Mushtaq Ahmed Zargar, Asstt. Surgeon of Govt. LD Hospital, Srinagar, PW-14 - Mohd. Younus Ganai, S/o Abdul Gafar Ganai, PW-15 - Hazi Gulam Ahmed Bhatt, S/o Late 23 SWP No. 1916/2004 IA No. 1/2016 Abdul Samad Bhatt, PW-16 - Mst. Gazallah Tabssum, D/o Late Mohd. Yousuf Ganai, PW-17 - Ct. Raj Kumar of 118 Bn BSF, No. 88677498, PW-18 - Const. Monower Ali of 118 Bn BSF, No. 94007099, PW-19 - Hamida Bano, W/o Gulam Nabi, PW-20 - Ct.(SG) Laluddin Lone of JKP, No.720, PW-21 - Inspector Irshad Ahmed Wani, No. 3620, SHO P/S Pulwama, PW-22 - Gulam Mohiddin Wani, S/o Gulam Nabi Wani, PW-23 - P. S. Randhwa, 2IC, 110 Bn BSF, IRLA No. 486440589, PW-24 (Addl) - Const. Nirmal Xalaxo of 118 Bn BSF, No. 94007755, PW-25 - SI Shanker Dutt of 75 Bn BSF, No. 70265036.
A deeper examination of the statements of the said witnesses reveals that all the witnesses have had been cross- examined by the defence counsel for the accused/deceased- petitioner during the GSF Court proceedings.
24. Further perusal of the record of the proceedings of the GSF Court tend to show that after the closure of the evidence of the prosecution, the accused produced HC Omesh Chand as his defence witness whereafter the evidence of the defence was closed and the prosecutor as well as the defence counsel were directed to make the closing address and thereafter the GSF Court passed the sentence after closing the proceedings holding the deceased- petitioner guilty of the charge and sentence him for suffering 24 SWP No. 1916/2004 IA No. 1/2016 rigorous imprisonment for ten years as also to be dismissed from service and which sentence came to be announced on 20.11.2003 and consequently confirmed on 03.02.2004 by the Inspector General BSF.
25. The fundamental issues raised by the deceased- petitioner against the proceedings of the GSF Court, at the cost of repetition, is that the respondents made a complete departure from the provisions of the Act of 1968 and the Rules of 1969 while conducting the said proceedings and that there was no evidence worth the name on the basis of which the GSF Court could have passed the impugned order of sentence and dismissal.
Insofar as the plea of non-observance of the provisions of the Act of 1968 and the Rules of 1969 are concerned, it is manifest from the record of the GSF Court that the relevant provisions of the Act of 1968 and the Rules of 1969 have been adhered to and followed by the GSF Court in the matter and no fault whatsoever can be said to have been committed or would be attributable to the GSF Court therein in the process of conducting said proceedings.
Insofar as the plea of the petitioner that there was no evidence worth the name that could have weighed with the GSF Court for directing sentence and dismissal of the deceased- 25 SWP No. 1916/2004 IA No. 1/2016 petitioner is concerned, the said findings of the GSF Court being based on facts recorded during the course of proceedings conducted by it may not warrant interference by this Court in exercise of extra ordinary writ jurisdiction, however, notwithstanding that a deeper and closer examination of the proceedings conducted by the GSF Court would manifestly demonstrate that the GSF Court has holistically considered the material and relied upon the evidence led by the prosecution as well as the deceased-petitioner, which evidence, per-se, would show no patent perversity committed by the said court. A reference herein to the judgment of the Apex Court passed in case titled as "Union of India and others Vs Subrata Nath" reported in 2022 SCC OnLine SC 1617 would be relevant, wherein it has been held that the Courts must refrain to interfere with the findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record or are based on no evidence and that once the gravity of misdemeanor is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, having been afforded to the delinquent employer, then the punishment imposed is not open to judicial review by the Court.
26 SWP No. 1916/2004IA No. 1/2016
26. It needs to be emphasized here and is pertinent to note here that the instant case pertains to a member of Security Force wherein utmost discipline and unity of command is sine qua non. The deceased-petitioner having been found guilty by the GSF Court, as noticed in the preceding paras, on the basis of clinching and credible evidence against him and also having been afforded an adequate opportunity of hearing cannot before this Court complain non-observance of the rules governing his service conditions or else non-compliance of the principles of natural justice, after the conclusion of proceedings before the said Court, wherein no objection as to the composition or procedure adopted and followed by the said court was ever raised by him.
27. Viewed thus, what has been observed, considered and analyzed hereinabove, the petition becomes liable to be dismissed. Resultantly, petition is dismissed along with all connected applications.
28. The original record produced by the learned counsel for the respondents is returned back.
(JAVED IQBAL WANI) JUDGE JAMMU 19.03.2024 Muneesh Whether the order is speaking : Yes Whether the order is reportable : Yes