Gauhati High Court
Page No.# 1/2 vs The Union Of India And 3 Ors on 18 June, 2025
Page No.# 1/20
GAHC010022822017
2025:GAU-AS:8177
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2850/2017
CONSTABLE SUMAN SINGHA
NO. 071260259, A COY OF 17-BN BSF, S/O. SHRI HARINATH SINGHA, R/O.
VILL. SARBOJANINTAL, JANJIPUR, P.S. RAGHUNATHGANG, DIST.
MURSHIDABAD, WEST BENGAL, PIN- 742225.
VERSUS
THE UNION OF INDIA and 3 ORS.
REP. BY THE SECRETARY TO THE UNION OF INDIA, MINISTRY OF
DEFENSE, NEW DELHI, PIN-110001.
2:DIRECTOR GENERAL OF BORDER SECURITY FORCE
BLOCK NO. 10 CGO COMPLEX LODHI ROAD
NEW DELHI PIN-110003.
3:INSPECTOR GENERAL
BORDER SECURITY FORCE
HQ PUNJAB FTR
BSF JALANDHAR CANTT PUNJAB PIN-144006.
4:COMMANDANT 17 BATTALION OF BSF FRONTIER
C/O- HQ BSF BLOCK 10
CGO COMPLEX
LODHI ROAD
NEW DELHI
PIN-110003
Advocate for the Petitioner : MR.B K DAS, MR.B CHAKRABORTY,MS.P HAZARIKA,MS.P
SARMAH
Advocate for the Respondent : C.G.C., ASSTT.S.G.I.,MR.K K PARASAR(R- 1-4)
Page No.# 2/20 :::BEFORE:::
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of hearing :18.06.2025 Date of Judgment:18.06.2025 Judgment & Order(Oral) Heard Mr. B. Chakraborty, learned counsel for the petitioner. Also heard Mr. Kamal Krishna Parasar, learned CGC, appearing on behalf of all the respondents.
2. The petitioner, herein, by way of instituting the present proceeding, has presented a challenge to an order, dated 06.08.2016, passed by the Commandant, 17th Battalion of Border Security Force, dismissing him from service in pursuance of the decision arrived at in this connection by the Summary Security Force Court(SSFC). The petitioner, herein, has also presented a challenge to an order, dated 02-04-2017, passed by the appellate authority, dismissing the appeal preferred by him and upholding the order, dated 06-08-2016, passed by the Commandant, 17 th Battalion of Border Security Force.
3. The brief facts requisite for adjudication of the issue arising in the present proceeding, is noticed, as under:
The petitioner, herein, was initially recruited as a Constable in the Border Security Force by an order, dated 27-07-2007. The petitioner, while posted at Ex-BOP, Mantrichar, Dhubri, with the 17th Battalion of the Border Security Page No.# 3/20 Force; came to be placed under suspension by an order, dated 26-12-2015.
The allegations levelled against the petitioner, for the purpose of placing him under suspension, was that he was involved in permitting 5(five) nos. of cattle to be smuggled from India into Bangladesh through Border Out-Post No. 1, on 23-12-2015, while he was deployed for duty, therein. The said order of suspension of the petitioner, was reviewed on 23-03-2016 and extended for a further period of 3(three) months i.e. up to 22-06-2016. Thereafter, on a further review of the said order of suspension; the Commandant, 17 th Battalion of Border Security Force, vide order, dated 23-04-2016, proceeded to revoke the order of suspension of the petitioner, herein, and reinstated him in his service with effect from 23-04-2016.
In view of the allegations existing against the petitioner, herein; the Commandant, 17th Battalion of Border Security Force, vide order, dated 13- 06-2016, directed the Deputy Commandant of the Unit of 17 th Border Security Force, to prepare a 'Record of Evidence' against the 2(two) charges levelled against him. Accordingly, the enquiry against the petitioner was conducted and therein, deposition of the departmental witnesses as well as that of the petitioner, herein, came to be recorded. The petitioner, during his examination in the enquiry, had admitted to the allegations levelled against him.
Thereafter, the 'Record of Evidence' as prepared, was placed before the Commandant, 17th Battalion of Border Security Force. The Commandant, 17th Battalion of Border Security Force, vide a communication, dated 03-08-2016, was pleased to convene a Summary Security Force Court (SSFC) for trying the petitioner, herein, with regard to the allegations levelled against him.
Page No.# 4/20 A charge-sheet was also framed against the petitioner in the matter and therein, 2(two) charges were levelled against him. The charge No. 1 levelled against the petitioner, herein, related to violation of the provisions of Section 46 of the Border Security Force Act, 1968, while the charge No. 2 levelled against him, pertained to violation of Section 22(e) of the said Border Security Force Act, 1968.
Thereafter, the Summary Security Force Court(SSFC) was convened in the matter and the petitioner, herein, along with his nominated friend, appeared before the Court. During the proceedings of the said Court, the petitioner was given an opportunity to explain the charges levelled against him and the petitioner admitted to his guilt. The admission of guilt by the petitioner was reduced, in writing, as required under the provisions of Rule 142(b) of the Border Security Force Rules, 1969. Thereafter, basing on the materials coming on record, the Summary Security Force Court(SSFC), on the same day, i.e. on 06-08-2016, proceeded to sentence the petitioner, herein, to be dismissed from service. The said Summary Security Force Court(SSFC) commenced its proceedings on 06-08-2016 at 11.00 hrs. and concluded it at 12.45 hrs., on the same day.
The petitioner, herein, being aggrieved by the order of dismissal from his service as imposed upon him, preferred an appeal before the appellate authority. The appellate authority, on consideration of the appeal, was pleased vide order, dated 02-04-2017, to reject the same and thereby, proceeded to uphold the order passed by the Summary Security Force Court(SSFC) on 06- 08-2016.
Being aggrieved, the petitioner, herein, has instituted the present proceeding before this Court.
Page No.# 5/20
4. Mr. Chakraborty, learned counsel for the petitioner, after reiterating the facts as noticed hereinabove, has submitted that charge No. 1 levelled against the petitioner, herein, in the charge-sheet, dated 03.08.2016, pertains to a misconduct covered by the provisions of Section 46 of the Border Security Force Act, 1968. The learned counsel has further submitted that Section 46 pertains to a commission of a civil offence which also has been held to be an offence committed by the person subject to the act under the said Act. The learned counsel has also submitted that the charge No. 1 under Section 46 of the Border Security Force Act, 1968, was dealt with by the respondents by convening a Summary Security Force Court(SSFC).
5. Mr. Chakraborty, learned counsel, by referring to the provisions of Section 74 of the Border Security Force Act, 1968, has further submitted that the Summary Security Force Court(SSFC) so constituted in the matter, was so done in violation of the provisions of sub-section(2) of Section 74 of the said Act. The learned counsel has submitted that prior to convening of the said Summary Security Force Court (SSFC), the competent authority had not recorded any reasons with regard to the existence for necessity of taking immediate action which would otherwise be detrimental to the discipline of the Force. Accordingly, the learned counsel has submitted that the convening of the Summary Security Force Court(SSFC) for dealing with the charge against the petitioner under Section 46 of the Border Security Force Act, 1968, was not permissible.
6. Mr. Chakraborty, learned counsel, has submitted that the allegation, therein, pertains to commission of a misconduct by the petitioner under Section 46 of the Border Security Force Act, 1968, however, there is no allegation levelled against him, of having permitted carrying-out of any Page No.# 6/20 smuggling activities and the offence so alleged, is, only of receiving gratification other than legal remuneration as a motive, or, reward, for bearing to do any official act, a civil offence covered under Section 46 of the Border Security Force Act, 1968; accordingly, it is submitted by the learned counsel that the said charge not having been established against the petitioner, no penalty was permissible to be imposed upon the petitioner, herein.
7. Mr. Chakraborty, learned counsel, by further referring to the provisions of Rule 47 of the Border Security Force Rules, 1969, has contended that an offence under Section 46 of the Border Security Force Act, 1968, would not be permissible to be so dealt with summarily. Accordingly, it is the contention of the learned counsel that given the offences alleged against the petitioner, herein; convening of a Summary Security Force Court(SSFC) was not mandated and accordingly, the penalty imposed upon the petitioner, would mandate an interference from this Court.
8. Mr. Chakraborty, learned counsel for the petitioner, has further submitted that the Commandant, 17th Battalion of Border Security Force, for the purpose of choosing the procedure requisite to be followed for dealing with the offence alleged against the petitioner, herein; had not considered the availability of other Security Force Courts as provided under section 64 of the Border Security Force Act, 1968, which would have also enabled the petitioner to defend his case in a proper manner.
9. With regard to the charge No. 2 levelled against the petitioner, herein; Mr. Chakraborty, learned counsel, has submitted that the same is with regard to possession of an amount of Rs. 29,000/-, which was held to be in violation of an order, dated 19-12-2014. The learned counsel by referring to the said Page No.# 7/20 order, dated 19-12-2014, has further submitted that the same only bars possession of more than Rs. 500/- by a personnel of the Force posted at the Border Post. The learned counsel for the petitioner has also submitted that the petitioner, herein, after coming back from duty, was not found to be in possession of any amount and the amount purportedly recovered from him, was so recovered from the bag kept by him in his barrack. Accordingly, the learned counsel for the petitioner, has submitted that the charge No. 2 so levelled against the petitioner, herein, would also not be maintainable.
10. Mr. Chakraborty, learned counsel, has submitted that in the 'Record of Evidence' prepared in the matter, no material was brought on record to demonstrate that the petitioner, herein, was involved in the alleged smuggling of the cattle through the border post, he was so guarding. The learned counsel has submitted that the said allegation was so levelled against the petitioner only on the basis of an anonymous information stated to have been received by one of the personnel of the Force. The learned counsel has further submitted that the allegations levelled against the petitioner, herein, was held to be established against him basing on the 'plea of guilty' made by him in the proceedings of the 'Record of Evidence' as well as before the Summary Security Force Court(SSFC).
11. Mr. Chakraborty, learned counsel, has submitted that the 'plea of guilty' of the petitioner recorded in the matter, was so recorded in clear violation of the provisions of Rules 142, 143(4)(a) and 143 of the Border Security Force Rules, 1969. The learned counsel has further submitted that there is no material brought on record to establish the involvement of the petitioner, herein, in the smuggling activity, in which, he was alleged to be involved, and accordingly, the charge No. 1 of a misconduct committed by the petitioner Page No.# 8/20 under Section 46 of the Border Security Force Act, 1968, was not permissible to be so considered by the Summary Security Force Court(SSFC).
12. Mr. Chakraborty, learned counsel for the petitioner, in the above premises, has submitted that the penalty imposed upon the petitioner, herein, along with the proceedings instituted against him in the matter preceding the same; would call for an interference by this court.
13. Per contra, Mr. Parasar, learned CGC, appearing on behalf of all the respondents, has submitted that the allegations alleged against the petitioner, herein, with regard to his involvement in smuggling activities, being brought to the notice of the authorities of the Unit concerned of the Border Security Force; he was placed under suspension vide order, dated 26-12-2015. Mr. Parasar, learned CGC, has further submitted that the said order of suspension on being extended up to 22-06-2016, was again considered on 23-04-2016 and on review of the same, the continuation of the suspension of the petitioner, herein, being found to be no longer necessary, the same was revoked and the petitioner was reinstated in his services.
14. Mr. Parasar, learned CGC, has submitted that in view of the order passed by the jurisdictional Deputy Inspector General, Border Security Force; the Deputy Commandant of the 17th Battalion of Border Security Force, was detailed as the Presiding Officer, as a one-man Staff Court of Inquiry (SCOI) to enquire into the circumstances under which the petitioner had facilitated crossing of cattle from India to Bangladesh through the post, he was so deployed to guard. Thereafter, after receiving due approval from the competent authorities; the Commandant, 17th Battalion of Border Security Force, under which the petitioner, herein, was, at the relevant point of time, Page No.# 9/20 posted; vide order dated 16-06-2016, proceeded to deploy the Deputy Commandant of the Unit, to prepare the 'Record of Evidence' against the petitioner, herein.
15. Mr. Parasar, learned CGC, has submitted that during the enquiry so held after issuance of the order, dated 16-06-2016, the petitioner, herein, had recorded his 'plea of guilty'. It is further submitted that such 'plea of guilty' recorded by the petitioner in the enquiry, was so recorded after giving him due opportunity. On conclusion of the enquiry; the 'Record of Evidence' was prepared and placed before the Commandant, 17th Battalion of Border Security Force, for further action. As the approval from the jurisdictional Deputy Inspector General, Border Security Force, was not received, a delay occasioned in convening of the Summary Security Force Court(SSFC). However, on receiving the due approval from the jurisdictional Deputy Inspector General, Border Security Force; the Commandant of the said Battalion, proceeded, vide communication, dated 03-08-2016, to convene a Summary Security Force Court(SSFC) against the petitioner, herein, and a charge-sheet, in this connection, was issued to him. The Summary Security Force Court(SSFC) thereafter, was convened on 06-08-2016, after advance information about such convening came to be given to the petitioner, herein. The Summary Security Force Court(SSFC) had considered the allegations levelled against the petitioner, herein, basing on the charge-sheet framed on 03-08-2016.
16. Mr. Parasar, learned CGC, has submitted that in terms of the procedure so provided for convening of a Summary Security Court; the charge-sheet is required to be so furnished to the delinquent, at least, 24 hours before the convening of the Court. Accordingly, it is the submission of Mr. Parasar, Page No.# 10/20 learned CGC, that the charge-sheet was so furnished to the petitioner, herein, much before the mandated period as laid-out in the provisions of the Border Security Force Act, 1968, as well as the Border Security Force Rules, 1969.
17. Mr. Parasar, learned CGC, by referring to the proceedings of the Summary Security Force Court(SSFC), held on 06-08-2016, has submitted that the petitioner, herein, had admitted to the charges levelled against him and his 'plea of guilty' was recorded, strictly, by complying the provisions existing in the Rules in this connection. Considering the materials coming on record as well as the 'plea of guilty' made in the matter by the petitioner, herein, Mr. Parasar, has submitted that the Commandant, 17 th Battalion of Border Security Force, on conclusion of the Summary Security Force Court (SSFC), proceeded to impose upon the petitioner, herein, the sentence of dismissal from service.
18. Mr. Parasar, learned CGC, has further submitted that the approval of the jurisdictional Deputy Inspector General, Border Security Force, having been obtained in the matter prior to convening of the Summary Security Force Court (SSFC) against the petitioner, herein; the contention of the learned counsel for the petitioner that the same was so convened in violation of the provisions of Section 74(2) of the Border Security Force Act, 1968, would not mandate an acceptance.
19. Mr. Parasar, learned CGC, in the above promises; has submitted that the claim made by the petitioner, herein, in the present proceeding, would not mandate an acceptance by this Court and the writ petition is liable to be dismissed.
Page No.# 11/20
20. I have heard the learned counsels appearing for the parties and also perused the materials available on record.
21. Before proceeding to consider the submissions of the parties to the instant proceeding; the relevant provisions of the Border Security Force Act, 1968, as well as the Border Security Force Rules, 1969, relevant to the issues arising in the present proceeding, is extracted hereinbelow:
"BORDER SECURITY FORCE ACT, 1968 Chapter-III (OFFENCES)
46. Civil Offences. -Subject to the provisions of section 47, any person subject to this Act who at any place in, or beyond, India 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, be punishable as follows, that is to say, --
a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned."
"64. Kinds of Security Force Courts. -For the purposes of this Act there shall be three kinds of Security Force Courts, that is to say
(a) General Security Force Courts;
(b) Petty Security Force Courts; and
(c) Summary Security Force Courts."
"74. Powers of a Summary Security Force Court.-(1) Subject to the provisions of sub-section (2), a Summary Security Force Court may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a Petty Security Force Court for the trial of the alleged offender, an officer holding a Summary Security Force Court shall not try without such reference any offence punishable under any of the sections 14, 17 and 46 of this Act, or any offence against the officer holding the court.
Page No.# 12/20 (3) A Summary Security Force Court may try any person subject to this Act and under the command of the officer holding the court, except an officer, or a subordinate officer.
(4) A Summary Security Force Court may pass any sentence which may be passed under this Act, except the sentence of death or of imprisonment for a term exceeding the limit specified in sub-section (5).
(5) The limit referred to in sub-section (4) shall be, -
(a) one year, if the officer holding the Security Force Court has held either the post of Superintendent of Police or a post declared by the Central Government by notification to be equivalent thereto, for a period of not less than three years or holds a post of higher rank than either of the said posts; and
(b) three months, in any other case."
"BORDER SECURITY FORCE RULES, 1969 "142. General plea of "Guilty" or "Not Guilty".-(1) The accused person's plea of 'Guilty' or 'Not Guilty' or if he refuses to plead or does not plead intelligibly either one or the other, a plea of 'Not Guilty' shall be recorded on each charge.
(2) If an accused person pleads 'Guilty' that plea shall be recorded as the finding of the Court but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall 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 of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty. (3) Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plead thereto, and a record to that effect shall be made in the proceedings of the Court.
143. Procedure after plea of 'Guilty'.-(1) Upon the record of the plea of 'Guilty', if there are other charges in the same charge-sheet to which the plea is 'Not Guilty', the trial shall first proceed with respect to those other charges and after the finding on those charges, shall proceed with the charges on which a plea of 'Guilty' has been entered; but if there are alternative charges, the Court may either proceed with respect to all the charges as if the accused had not pleaded 'Guilty' to any charge or may, instead of trying him, record a finding of 'Guilty' upon any one of the alternative charges to which he had pleaded 'Guilty' and finding of 'Not Guilty' upon all the other alternative charges which precede such charge.
(2)(a) After the record of the plea of 'Guilty' on a charge (if trial does not proceed on any other charges) the Court shall read the record or abstract of evidence and annex it to the proceedings, or if there is no such record or abstract, shall take and record sufficient evidence to enable it to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence.
(b) The evidence shall be taken in like manner as is directed by these rules in the case of a plea of 'Not Guilty'.
Page No.# 13/20 (3) The accused may, after such evidence has been taken or as the case may be, the record or abstract of evidence has been read, address the Court with reference to the charge and in mitigation of punishment and may call witnesses as to his character.
(4)(a) If from the statement of the accused, or from the record of evidence, or otherwise, it appears to the Court that the accused did not understand the effect of his plea of 'Guilty', the Court shall alter the record and enter a plea of 'Not Guilty' and proceed with the trial accordingly.
(b) Any alternative charges withdrawn under sub-rule(1) shall be reinstated in the charge sheet and the trial shall take place as if they had never been withdrawn.
(5) If a plea of 'Guilty' is recorded on some charges and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub-rule (2) and (3) shall take place after the findings on the other charges in the same charge-sheet are recorded.
(6) When the accused states anything in mitigation of punishment which in the opinion of the Court requires to be proved, and would, if proved, affect the amount of punishment, the Court may permit the accused to call witness to prove the same.
144. Withdrawal of plea of 'Not Guilty'. -The accused may, if he thinks fit at any time during the trial, withdraw his plea of 'Not Guilty' and plead 'Guilty' and in such case the Court shall at once, subject to compliance with sub-rule (2) of rule 142 record a plea and finding of 'Guilty' and shall, so far as if necessary, proceed in manner directed by Rule
143.
151. Procedure on finding of 'Guilty'.-(1) Where the finding on any charge is 'Guilty' the Court may record of its own knowledge, or take evidence of any record, the general character, age, service, rank, and any recognised acts of gallantry, or distinguished conduct of the accused, and previous convictions of the accused either by a Security Force Court, or a Criminal Court, any previous punishment awarded to him by an officer exercising authority under section 53, the length of time he has been in arrest or in confinement of any previous sentence, and any decoration or reward of which he may be in possession or to which he may be entitled.
(2) Where the Court does not record the matters mentioned in this rule of its own knowledge, evidence on these matters may be taken in the manner directed in rule 101 for similar evidence."
22. A perusal of the provisions of Section 46 of the Border Security Force Act, 1968, would go to reveal that any person, subject to the provisions of the Act, commits any civil offence, shall be deemed to be guilty of an offence against the Act and if charged therewith, under Section 46, shall be liable to be tried by a Security Force Court.
Page No.# 14/20
23. The kinds of Security Force Courts is provided under the provisions of Section 64 of the Border Security Force Act, 1968, and the 3(three) kinds of Security Force Courts set-out, therein, are the General Security Force Court, Petty Security Force Courts and the Summary Security Force Courts. The provisions of Section 74 deals with the powers of a Summary Security Force Court(SSFC). Sub-section(2) of Section 74 of the Act of 1968, mandates that if there is no grave reason for immediate action and reference can, without detriment to the discipline, be made to the officer empowered to convene a Petty Security Force Court, for the trial of an alleged offender; an officer holding a Summary Security Force Court(SSFC) will not try without such reference, any offence punishable under Sections 14, 17 and 46 of the Border Security Force Act, 1968.
24. The provisions of Sub-section(2) of Section 74 of the Border Security Force Act, 1968, on perusal, reveals therein that while a procedure under the Summary Security Force Court(SSFC) has been provided; a safeguard has also been incorporated, therein, to the effect that there has to be a grave reason for immediate action and the alleged offence is treated to be detrimental to the discipline of the Force and it cannot wait for a Petty Security Force Court and accordingly, in such an eventuality, the recourse can be made to the Summary Security Force Court(SSFC). The Border Security Force Act, 1968, confers the power upon the Commandant to choose any kind of Security Force Court as provided under Section 64, however, the said discretion is to be exercised and required to be guided by keeping in mind, the necessity of immediate action and the effect of the alleged incident/ offence/misconduct, in respect of the discipline of the Security Force.
25. In the case on hand, the Summary Security Force Court (SSFC) was so Page No.# 15/20 convened on an endorsement made for its convening by the jurisdictional Deputy Inspector General, Border Security Force. Although Mr. Chakraborty, learned counsel for the petitioner, in the present proceeding, has submitted that the perquisites as provided under the provisions of sub-section(2) of Section 74 of the Border Security Force Act, 1968, was not fulfilled by the respondents, however, the same was countered by the Mr. Parasar, learned CGC, by contending that the provisions of sub-section(2) of Section 74 of the said Act, has to be deemed to have been so satisfied by convening a Summary Security Force Court(SSFC) against the petitioner, herein, inasmuch as, the same was so convened in terms of the approval granted in the matter by the jurisdictional Deputy Inspector General, Border Security Force.
26. In the instant case, it is seen that the petitioner, herein, has not questioned the competence of the jurisdictional Deputy Inspector General, Border Security Force, but, the grievance raised by him is with regard to invoking of the extraordinary procedure in the form of Summary Security Force Court(SSFC) when there were other Security Force Courts viz. the General Security Force Court, and the Petty Security Force Court, available for being convened to deal with the allegations so levelled against the petitioner, herein, more particularly, when the charge No. 1, pertained to an allegation of commission of a misconduct under Section 46 of the Border Security Force Act, 1968. The materials brought on record including the charges framed against the petitioner, on 03-08-2016, goes to reveal that the allegation levelled against the petitioner, herein, is with regard to the commission of a misconduct of civil offence which can also be construed to be an offence under the provisions of Section 46 of the Border Security Force Act, 1968.
27. A perusal of charge No. 1, would further go to reveal that the petitioner, Page No.# 16/20 herein, was charged for committing a civil offence under Section 7 of the Prevention of Corruption Act, 1988. The respondents themselves having treated the offence committed by the petitioner, herein, to be in the nature of a civil offence under Section 46 of the said Act; the recourse taken by the respondents to the Summary Security Force Court(SSFC), does not seem to be justified in the facts of the present case. It has also not been brought to the notice of this Court that reasons came to be recorded by the respondent authorities prior to convening the Summary Security Force Court(SSFC) satisfying the perquisites of sub-section(2) of Section 74 of the Border Security Force Act, 1968.
28. Given the language in which sub-section(2) of Section 74 of the Border Security Force Act, 1968, is so couched; the appropriate authority while being empowered to choose a particular Security Force Court under Section 64 of the Act, for trying an offence, however, the procedure so adopted, would depend not only on the nature of the offence committed but also on the gravity of the offence and the urgency of the matter as well as its impact on the Force. The said requirement, which ought to be spelt-out clearly by the authority considering the matter, in the present case, while convening the Summary Security Force Court(SSFC) against the petitioner, herein, is found to have not been satisfied.
29. As noticed hereinabove, no amount was found on the body of the petitioner, herein, while he was searched. However, an amount of Rs. 29,000/- was recovered from his possession from his bag which was kept in the barrack. The charge so framed against the petitioner does not level any allegation against him of being involved in any smuggling activity, or, receiving the unexplained amount of Rs. 29,000/- so recovered from him, to have been Page No.# 17/20 so received from the smugglers while deployed at the Border Post. The projection made in this connection seems to be a presumption so made.
30. The respondents have placed the original records of the matter before this Court and on a perusal of the same; it is found that there is no iota of any evidence, or, material, adduced against the petitioner in the 'Record of Evidence' to the effect that the petitioner was, in any manner, involved in smuggling of cattle from India into Bangladesh through the Border Post in which he was so deployed. The above being the position, the charge No. 1, admittedly, could not have been so considered by convening a Summary Security Force Court(SSFC).
31. At this stage, reference is required to be made to the provisions of Rule 47 of the Border Security Force Rules, 1969. The provisions of Rule 47, being relevant, is extracted hereinbelow:
"47. Charges not to be dealt with summarily.-A charge for an offence under section 14 or section 15 or clauses (a) and (b) of section 16, or section 17 or clause (a) of section 18 or clause (a) of section 20 or clause (a) of section 24 or section 46 (other than that for simple hurt or theft) or a charge for abetment of or an attempt to commit any of these offences shall not be dealt with summarily."
32. A perusal of the provisions of Rule 47 of the Border Security Force Rules, 1969, would go to reveal that a charge for an offence under section 46(other than that for simple hurt or theft), or, a charge for an abetment, or, an attempt to commit any of the offences; shall not be dealt summarily. This Court having already concluded that the charge No. 1 levelled against the petitioner, herein, in the charge-sheet, dated 03-08-2016, could not have been so dealt with by convening a Summary Security Force Court(SSFC), in- as-much as, the perquisites as mandated under sub-section (2) of Section 74 of the Border Security Force Act, 1968, was, admittedly, not satisfied. The said Page No.# 18/20 conclusion when read in the light of the provisions of Rule 47, a bar being created therein, for considering a misconduct under section 46 of the said Act, summarily; this Court is of the considered view that the charge No. 1, admittedly, could not have been so dealt with by convening a Summary Security Force Court (SSFC).
33. Having arrived at the above conclusions with regard to charge No. 1, this Court would now consider the charge No. 2 framed against the petitioner, herein.
34. The charge No. 2 framed against the petitioner, herein, pertains to commission of a misconduct under the provisions of Section 22(e) of the Border Security Force Act, 1968. A perusal of the said allegations which pertains neglecting to obey the local order, reveals that on 23-12-2015; the petitioner, herein, was found to be in possession of Rs. 29,000/- which was held to be in contravention of an Office Order of the Commandant, 17 th Battalion of Border Security Force, issued on 19-12-2014, which forbade possession of more than Rs. 500/- by a personnel at the Border Post. A perusal of the said order, dated 19-12-2014, mandates that a personnel posted at Border Post, shall not keep more than Rs. 500/- in his possession. In case, any amount above Rs. 500/-, is found in possession of anyone then he himself shall be responsible for the same. The bar of possession of more than Rs. 500/-, in terms of the said order, dated 19-12-2014, is in relation to a Border Post. The said prescription cannot be read in a manner to also mean that a personnel of the Force on being deployed at a Border Post, cannot have more than Rs. 500/- with him in belongings kept in his barrack.
35. The amount of Rs. 29,000/- being also involved in the charge No. 1 Page No.# 19/20 framed against the petitioner, herein, and it already having been concluded that the respondents have failed to bring on record, materials to establish that the said amount of Rs. 29,000/- was so received by the petitioner from smugglers while being posted at the Border Post; this Court is of the considered view that the charge No. 2 levelled against the petitioner of neglecting to obey the local order, dated 19-12-2014, would also not mandate an acceptance.
36. In the present proceeding, the learned counsel for the petitioner has further raised the contention that the 'plea of guilty' recorded in the enquiry as well as in the Summary Security Force Court (SSFC), was so recorded in violation of the provisions of section 142(2) of the Border Security Force Rules, 1969. The said contention need not detain this Court, further, in-as- much as, the proceeding wherein such plea was so recorded; has also been concluded by this Court, hereinabove, to have been initiated against the petitioner, herein, without any jurisdiction. Accordingly, the said contention is not further considered in the present order.
37. In view of the above position, this Court is of the considered view that the Summary Security Force Court (SSFC) convened against the petitioner, herein, vide the communication, dated 03.08.2016, and the proceedings held therein, would mandate an interference and accordingly, the same are hereby set aside.
38. The order, dated 06.08.2016, of the Summary Security Force Court(SSFC) sentencing the petitioner, herein, to be dismissed from his service, also stands set aside along with the order, dated 02.04.2017, passed by the appellate authority in the matter.
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39. The orders impugned in the present proceeding, having been set aside; the respondents shall now reinstate the petitioner, herein, in his service, forthwith.
40. It is, however, provided that the petitioner, from the date of his dismissal from service till the date of his reinstatement in service; shall not be entitled to any backwages. The period with effect from the date of the dismissal of the petitioner from his service till the date of his reinstatement, shall, however, be considered for the purpose of computation of his pension and pensionary benefits.
41. The respondent authorities while proceeding to notionally fix the pay of the petitioner, herein, in terms of the directions passed hereinabove, shall also account for the revisions of pay coming into force, in the meanwhile.
42. The consequential orders towards reinstating the petitioner, herein, in his service, along with the order of fixation of his pay, notionally, shall be so passed by the respondent authorities within a period of 1(one) month from the date of receipt of a certified copy of this order.
43. With the above directions and observations, this writ petition stands disposed of.
44. The relevant records be remitted to the respondents, herein.
JUDGE Comparing Assistant