Punjab-Haryana High Court
Head Const. Hardev Singh vs Union Of India And Others on 11 January, 2000
Equivalent citations: 2000CRILJ2585
ORDER
1. The petitioner, Hardev Singh, was posted as Head Constable in 67 Battalion, Border Security Force (hereinafter to be referred as "the BSF") at Baghapurana in October, 1991. In the night intervening 24/25th October, 1991, the petitioner was posted as Guard Commander. According to the charge-sheet (copy Annexure P1) dated 11-4-1992, the petitioner allegedly committed the murder of Constable Ratna Bhai of his unit by firing a shot from his Carbine Butt No. 54, body Registration No. JJ 0324. The petitioner was tried by the General Security Force Court (hereinafter to be referred as "GSFC"), which was convened by the Additional Director General, BSF, Punjab Frontier, vide order dated 5th May, 1992, passed on the charge-sheet dated 14th May, 1992. The charge-sheet was served on the petitioner for committing civil offence under Section 46 of the BSF Act, i.e. the offence of murder, punishable under Section 302 of the Indian Penal Code. The deceased Constable Ratna Bhai was allotted Constabulary No. 90172617. The charge-sheet was signed by Shri D. Kaushal, Commandant, 67 Battalion, BSF, Mamdot.
2. The GSFC found the petitioner/accused Hardev Singh guilty of the aforesaid charge and he was awarded sentence of seven years rigorous imprisonment and dismissal from the service. The finding and sentence of the GSFC were required to be confirmed by the confirming authority. The Inspector General of the BSF, Punjab Frontier examined the finding and sentence awarded by the GSFC and passed a revision order (copy Annexure P 5) dated 22-9-1992, wherein he held that the sentence of seven years rigorous imprisonment awarded by the GSFC was not legal. He directed that the GSFC shall after giving an opportunity to the accused to address the Court in respect of the matter raised in the revision order and if on reconsideration the GSFC decided to revise the sentence, it shall revoke the sentence already passed and award the sentence afresh as provided in the BSF Rule 105.
3. The GSFC was re-assembled on 22-9-1992 at Mamdot and revoked its earlier sentence and passed a revised sentence on the petitioner Hardev Singh to suffer imprisonment for life under the aforesaid charge. The finding and sentence as revised by the GSFC were submitted for confirmation before the confirming officer. The confirming officer, i.e. the Inspector General, Border Security Force, Punjab Frontier, confirmed the finding and sentence of the GSFC on 19-11-1992 and directed that the sentence of imprisonment shall be undergone by confinement in a Civil Prison (vide copy Annexure P 6).
4. The petitioner had filed complaint dated 6-6-1992 (copy Annexure P 4) addressed to respondent No. 2 Director General, BSF, Lodhi Road, New Delhi, by name, levelling the allegations of bias against the Law Officer right from the commencement of the trial. The petitioner cited various instances to support his contention that the Law Officer was biased, prejudicial and partial towards his defence. The petitioner prayed that the trial proceedings conducted against him by the GSFC be set aside and he may be put on trial afresh by attaching him to a different Unit. He also prayed for another Law Officer and new Court to be constituted for his trial.
5. The petitioner lateron submitted a post-confirmation petition under Section 117 (2) of the Border Security Force Act (hereinafter to be referred as "the Act") to the Union of India, i.e. respondent No. 1 through Secretary, Ministry of Home Affairs, New Delhi and a copy of the statutory petition was also forwarded to the respondent No. 5, Commandant, 67 Battalion, BSF Mamdot, District Ferozepur, Punjab. The petitioner was informed by the Joint Assistant Director (Law) of BSF Headquarters on 20-11-1992 that his petition against the sentence awarded by the GSFC and the complaint dated 6-6-1992 regarding unfair trial had been considered by the competent authority and the same had been rejected as being devoid of any merit, vide copy Appendix R-1.
6. The petitioner filed Civil Writ Petition No. 6436 of 1993 in this Court on 31-5-1993 praying for issuance of a writ of mandamus to the respondents to decide his statutory post-confirmation petition dated 14-2-1993 by a reasoned order in accordance with Section 117 of the Act and also for passing interim orders for his release on parole or for suspension of his sentence of imprisonment in accordance with Sections 128 and 130 of the Act. The said writ petition came up for hearing before this Court on 1-6-1993 and directions were issued to the respondents to dispose of the statutory post-confirmation petition by a reasoned order according to law within three months of the date of receipt of copy of the order. The Court also permitted the respondents to pass appropriate interim orders, if so advised. The respondents failed to comply with the directions aforesaid and the petitioner filed a contempt petition (COCP No. 788 of 1993) before this Court, which was pending at the time of filing of the present writ petition.
7. Feeling aggrieved against the impugned order, the petitioner has moved this writ petition under Articles 226/227 of the Constitution of India praying for issuance of a writ in the nature of certiorari, setting aside the finding at Annexure P 2 and quashing the sentence of imprisonment for life at Annexure P-6, including the confirmation thereof awarded to the petitioner and further for issuance of a writ, order or direction quashing the subsequent order of dismissal by respondent No. 5 at Annexure P-8, being without jurisdiction and illegal. The petitioner also prayed for issuance of a writ order or direction declaring Section 46 civil offences, Section 65 convening of a GSFC and its connected provisions containing procedure of trial including Section 113 (Revision of finding or sentence) amount to unreasonable legislative classification being ultra vires of Articles 14, 16, 21, 22 and 33 read with Article 13 (2) of the Constitution. The petitioner also prayed for issuance of a writ, order or directions declaring that Rules 63 (2), 105(4)(5) of BSF Rules 1969 are ultra vires of Section 113 of the BSF Act as well as Articles 21, 33 and 50 of the Constitution.
8. The petitioner also challenged the vires of certain provisions of the Act and the Rules, by comparing those provisions with the corresponding provisions contained in the Acts and Rules of ITBP, Coast Guard, CRPF, RPF and CISF etc.
9. The respondents filed written statement to the writ petition. A preliminary objection has been raised on behalf of the respondents regarding the maintainability of the writ petition on the ground that the petitioner has sought reappraisal of the evidence and he wants this Court to act as a Court of appeal while reappraising the evidence led before the GSFC. Regarding the occurrence in which Constable Ratna Bhai died, it has been averred that the petitioner admitted about Constable Ratna Bhai dying due to injuries caused by the bullet fired by the petitioner. The statement of the petitioner was recorded in the Record of Evidence (in short to be referred as "ROE"), vide Annexure P-11. The respondents contended in para 11 of the reply that the respondent No. 5/Commandant Bn BSF on 31-10-1991 received an anonymous letter written on 26-10-1991, which had been posted on 29-10-1991, alleging about the murder of Constable Ratna Bhai having been committed by the petitioner. Involvement of the Coy Commander and SI Gumam Singh was also disclosed in the said letter. After receipt of the said complaint a Staff Court of Inquiry was conducted to investigate the matter and find out the truth in the said enquiry, it was found that there was enough evidence to establish that the petitioner was involved in the crime and he had caused death of Constable Ratna Bhai. On the recommendation of the Staff Court of Inquiry, disciplinary action was initiated against the petitioner, who was produced before the Commandant/respondent No. 5 on 30-11-1991 on offence report. Charge was heard under BSF Rule 45 and thereafter the preparation of record of evidence was ordered on 30-11-1991 itself. The contention of the respondents is that all these actions were taken strictly in accordance with the BSF Act and BSF Rules. The record of evidence was scrutinized by respondent No. 5/Commandant, who forwarded the same to the higher Headquarters, recommending trial of the petitioner by the General Security Force Court (GSFC) in terms of BSF Rule 51. The record of evidence was then scrutinized at the higher HQrs, Jalandhar by respondent No. 3/Additional Director General, BSF, who found a prima facie case against the petitioner on a charge of murder under Section 302, IPC read with Section 46 of the Act. Accordingly, respondent No. 3 issued the convening order, directing the petitioner to be tried by the GSFC. The GSFC carefully appreciated the evidence and after taking into account all the facts and circumstances of the case, found the petitioner guilty of the charge and sentenced him as aforesaid. Receipt of the petitioner dated 2-6-1992 and the complaint dated 6-6-92 from the petitioner has been admitted. It has been alleged that the said petition and the complaint were examined in detail and were rejected as being devoid of merit. The decision of the competent authority was duly conveyed to the petitioner vide letter dated 20-11-1992, copy of which has been attached as Appendix A to the reply. It was further submitted that no written submission for supply of copy of the proceedings of the GSFC was moved by the petitioner while he was under forced custody. His counsel had applied vide letter dated 11-6-92 for a copy of the said proceedings. It was further contended that the petitioner was not refused for supply of copy of the said proceedings and in this connection formal decision was obtained from the higher HQrs. On the direction of the higher HQrs, learned counsel for the petitioner was informed that the copy of the proceedings could be supplied only after the same are confirmed by the confirming authority, as required under BSF Rule 129A. A copy of the FIR HQ BSF Jal Savingram dated 23-9-93 was placed on record as Appendix R-3. Regarding the pre-confirmation petition dated 2-6-1992 and also the complaint dated 6-6-1992 filed by the petitioner, it was averred in reply to paras 23 to 27 that the same were duly examined and rejected by the competent authority before confirming the proceedings of the GSFC. As regards post-confirmation petition dated 14-2-1993, it was submitted that the said petition was addressed to the Central Government and as soon as it was received at HQrs DG BSF, New Delhi, it was forwarded to the Central Government for appropriate orders. It was further submitted that after collecting details with regard to the issue raised in the statutory petition, it was disposed of by a reasoned order, which was duly communicated to the petitioner by registered post on 22-10-1993. As regards filing of Civil Writ Petition No. 6436 of 1993 in this Court by the petitioner and a direction of this Court to the respondents to dispose of the petition of the petitioner within three months from the date of receipt of copy of the order is concerned, it was submitted that the petitioner instead of awaiting reply of the respondents, filed the writ petition in the High Court pre-maturely. A copy of the order of the Central Government passed on 22-10-1993, disposing of the post-confirmation statutory petition was enclosed with the reply as Appendix D. The respondents contended that the order of the High Court dated 1-6-1993 was received by them only during the month of August, 1993 and the statutory petition was disposed of within three months from the receipt of the Court order. The respondents defended the vires of the provisions of the Border Security Force Act, 1968 and the Border Security Force Rules, 1969 and contended that the same were in accordance with the provisions of the Constitution of india. It was further mentioned that whatever restrictions have been imposed, are permissible under Article 33 of the Constitution of India. It was further submitted that the level of discipline required could not be identical in all the forces. The Act and Rules governing various forces were primarily designed keeping in view the role and nature of duties of each Force. Evidently, a Force deployed on the border to safeguard the borders is supposed to be governed by a very stringent code as it was felt that a very high standard of discipline is warranted in a Force deployed on the borders. That was precisely the reason that the BSF Act and Rules were designed on the lines of Army Act and Army Rules. It was denied that there was violation of any mandatory provisions of the Act and Rules. It was contended that the trial of the petitioner was impartial and in accordance with law. The allegations of bias on the part of the Law Officer were categorically denied. It was contended that the petitioner was given fullest opportunity to defend his case and no prejudice had been caused to him. The contention of the respondents is that the petitioner has not stated the true facts and has suppressed whatever was inconvenient to him. The petitioner was provided with the services of Shri Balbir Singh, Second-in-command, 34 Battalion BSF in addition to Sh. D. S. Dhillon, Advocate, engaged by the petitioner, who had defended the petitioner throughout the GSFC proceedings. The petitioner did not make any request for the presence of Shri D. S. Dhillon Advocate at the stage of revision of sentence and did not pray for any adjournment before the Court on this count. It was stated that Shri Balbir Singh aforesaid was present during the GSFC proceedings and had defended the petitioner.
10. I have heard learned counsel for the petitioner and the learned Standing Counsel for the respondents at length. I have carefully gone through the record of the case, including the record of the GSFC proceedings and have also carefully perused the various provisions of the Border Security Force Act and the Rules. The respondents contended that the trial of the petitioner was conducted strictly in accordance with the BSF Act and BSF Rules.
11. Mr. RTPS Tulsi, learned counsel for the petitioner has raised a number of propositions, which he has summarised in a separate list produced at the time of arguments, which widely covers various pleas, points and submissions regarding the legality and validity of the impugned sentence and other orders and also the violations of some provisions of the Act/Rules. Mr. Tulsi has also given a comparative list of the provisions of different Acts/Rules, with a view to show the difference with the provisions of Acts/Rules of other services and also to show the alleged hostile discrimination to the members of the Border Security Force. A number of judgments of the Hon'ble Supreme Court and other High Courts have been referred to by the learned counsel for the petitioner as also by the learned Standing counsel for the Union of India in support of their rival contentions and separate lists thereof have also been provided, which have been placed on record. The facts leading to the incident resulting in the death of Constable Ratna Bhai have already been seen from the narration of the facts contained in the petition as well as the written statement.
12. At the very out-set, it may be mentioned that this Court while examining this petition under Articles 226/227 of the Constitution of India will not convert itself into a Court of appeal hearing an appeal filed under the Statute and then to re-appraise and appreciate the evidence led at the trial against the petitioner, adduced at the GSFC. The impugned finding of sentence and other orders, which are sought to be quashed in this writ petition are to be judicially reviewed within the parameters of the exercise of writ jurisdiction under Article 226 and 227 of the Constitution of India. In other words, the finding of the GSFC and the orders of confirming revisional and other authorities are not to be examined and appreciated as a Court of appeal by freely referring to the evidence and other material placed on record of the proceedings of the GSFC. Their Lordships of the Hon'ble Apex Court have in Union of India v. IC 14827, Major A Hussain, AIR 1998 SC 577 considered the scope of judicial review of the proceedings, findings and orders of the Court Martial by the High Court in exercise of powers under Articles 226/ 227 of the Constitution of india and have held in para 22 as under (at page 585-586) :-
"Though Court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution. The court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any Court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a Court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment."
13. Following the law laid down by the Hon'ble Apex Court in Dhir Singh Pundir v. Union of india, 1998 (4) RCR 197 a learned single Judge of this Court held that the High Court does not sit as a Court of appeal but only to examine whether the findings of the General Court Martial proceedings were based on evidence and that the Court Martial authorities had acted without jurisdiction or not sufficiency of evidence is not to be seen by the High Court. Court martial proceedings are subject to judicial review by the High Court under Article 226 but not subject to superintendence of High Court under Article 227 of the Constitution of India.
14. It is, thus, evident that the High Court does not exercise power of superintendence over the Court Martial under Article 227 of the Constitution.
15. In para 21 of the judgment in Union of India v. IC 14827, Major A Hussain (supra), it was, inter alia, held :-
"....... The court-martial had been conducted in accordance with the Act and Rules and it is difficult to find any fault in the proceedings. The Division Bench said that the learned single Judge minutely examined the record of the court-martial proceedings and after that came to the conclusion that the respondent was denied reasonable opportunity to defend himself. We think this was fundamental mistake committed by the High Court. It was not necessary for the High Court to minutely examine the record of the General Court-martial as if it was sitting in appeal. We find that on merit, the High Court has not said that there was no case against the respondent to hold him guilty of the offence charged."
16. Their Lordships of the Apex Court after examining the record of the court-martial, observed in para 23 as under :-
"After ourselves examining the record of the court-martial, we find that the High Court completely misdirected itself in coming to the conclusion that the respondent was denied reasonable opportunity to defend himself. He was given copies of all the relevant papers and also given opportunity to inspect whatever record he wanted, allowed services of a civilian counsel, special advance was given to engage the services of civil counsel as requested by the respondent, there was no rule to give further advance to engage yet another civil counsel when first one withdrew, respondent was not hampered by paucity of funds as made out by him, no fault could be found with the convening officer if the respondent himself did not avail the services of a defending officer when provided, cross-examination of important witnesses was deferred at the request of the respondent, and he had participated in the recording of summary of Evidence without raising any objection. The General Court-martial took into consideration all the evidence and other materials produced before it, found the respondent guilty of the charge and sentenced him to be dismissed from service. Pre-confirmation petition submitted by the respondent was rejected by the Chief of the Army Staff and findings and sentence of the General Court-martial were confirmed by him. Thus examining the case of the respondent from all angles, which led the High Court to set aside his conviction and sentence, we are satisfied that there was no irregularity or illegality and respondent was provided with reasonable opportunity to defend himself and the proceedings were fair. We, therefore, set aside the impugned judgment of the High Court and dismiss the writ petition filed by the respondent."
17. Now I propose to deal with the various propositions formulated by the learned counsel for the petitioner for examination of the proceedings of the GSFC and the findings of guilt recorded by it. While doing so, I intend to deal with those propositions which relate to the alleged breach of the provisions of the BSF Act and the BSF Rules as also the allegations of bias on the part of the Inquiry Officer, PW. 11 and on the part of the Law Officer and thereby causing serious prejudice to the petitioner. In addition to these propositions, I also propose to deal with the proposition relating to the denial of the right of defence through a counsel to the petitioner in the revisional proceedings. Besides it, I intend to deal with the proposition relating to the alleged incompetence of the authority confirming the finding and sentence of the GSFC being lower in rank than the rank of the authority, who convened the GSFC. Before dealing with the said propositions, it will be relevant to mention that the GSFC in this case was convened for the trial of the petitioner on the charge-sheet copy Annexure P1, under Section 46 of the BSF Act for committing civil offence, i.e. to say the offence of murder punishable under Section 302, IPC . The GSFC was convened by the Additional Director General, Punjab Frontier, BSF, Jalandhar Cantt. vide order dated 5-5-1992, which order appears at the foot of the charge-sheet, annexure P1.
18. Learned counsel for the petitioner in proposition No. VII raised the following question :-
Whether revision order dated 16-9-1992 at Annexure P-5 is issued by a competent authority as per Section 108 of the Act and whether GSFC proceedings can be confirmed by a junior Authority than the Convening Authority ?
18A. It may be stated that the GSFC in the case of the petitioner for his trial on the charge sheet (Annexure P1) was convened by the Additional Director General, Punjab Frontier, BSF, Jalandhar Cantt. The revision order (Annexure P5) is dated 16-9-1982, which was passed by Shri P. C. Dogra, Inspector General, Border Security Force, Punjab Frontier. In para 19 of the writ petition the petitioner referred to above the revision order passed by the respondent No. 4/Inspector General, Border Security Force, Punjab Frontier, on 16-9-1992, ordering for reassembling of the GSFC for revision of its sentence only (vide copy Annexure P5). In pursuance of the revisional order, the GSFC re-assembled on 22-9-1992 and revoked its earlier sentence and passed revised sentence. "To suffer imprisonment for life". The proceedings containing the revised sentence were placed on record as Annexure P6 (vide para 20 of the writ petition). The finding and sentence of the GSFC were confirmed on 19-11-1992 by respondent No. 4/Inspector General, Border Security Force, Punjab Frontier, BSF Campus, the confirming authority. In para 59 (n), the petitioner took the plea that the revisional order was passed by respondent No. 4, an officer junior in rank and status and in contravention of the warrants issued by the Central Government as also Sections 108 and 110 of the Act. In para 59(o) the petitioner took the plea that the revision order at Annexure P5 was issued with implied directions to award enhanced punishment in contravention of the powers of the confirming authority under sections 111 and 116(3) of the Act. In ground 59(p), the petitioner alleged that the confirmation of the proceedings at Annexure P-6 was made in violation of Section 108 and Rule 106 of the Act and the Rules inasmuch as the confirmation was done by an officer junior in rank to the convening authority.
19. The respondents in their written statement denied the contents of sub-para (n) of para 59 and submitted that no prejudice has been caused to the petitioner. Regarding sub-para (o) of para 59, it was replied that at the time of convening the GSFC i.e. on 5-5-1992, Additional Director General was appointed by the Government and the necessary warrant was also issued in his name. Reference was made to the detailed reply in para 57(c) of the written statement, which inter alia reads as under :-
"..... In fact, at the relevant time, when GSFC was convened, Punjab Frontier was being headed by an Officer of the rank of Addl. DG, which post was subsequently withdrawn and the Frontier was thereafter headed by an Officer of the rank of Inspector General instead of Addl. DG. Initially, when Punjab Frontier was headed by Addl. DG, the warrant to convene and confirm the GSFC was given to Addl. DG but, subsequently, when the post was withdrawn, the warrant was also withdrawn and it was given to the Inspector General, who was heading that Frontier at the time of revision and confirmation of the GSFC proceedings. The action to convene GSFC under the order of Addl. DG and thereafter ordering revision and confirming the proceedings under the orders of Inspector General are perfectly in order and legally sustainable. Under Section 65 of the BSF Act all Frontier Inspector General (Where Frontiers are headed by Inspectors General) are given the warrant to convene GSFC by the DG BSF and to confirm the findings and sentence of GSFC by the Central Govt. under sections 65 and 108 respectively of the BSF Act."
20. It will, thus, appear from perusal of the stand taken by the respondents in the written statement that at the time of convening of the GSFC for trial of the petitioner on the charge sheet, Annexure P1, the Additional Director General, Punjab Frontier, BSF, Jalandhar Cantt. has been empowered by the Director General of the BSF to convene the GSFC and he was empowered by the Secretary, Ministry of Home Affairs to revise and confirm the finding and sentence passed by the GSFC. The warrants/notifications, which have been placed on record by the respondents after seeking opportunity to file the same, show that it was in 1973 that the Director General, Border Security Force had empowered the Inspector General of the Battalion to convene the GSFC and the Secretary to the Ministry of Home Affairs had issued notification/warrant on 21-11-1973, empowering the Inspector General of the Battalion to confirm the finding and sentence of the GSFC. The respondents have not placed on record notification/warrant authorising the Additional Director General, 67 Battalion, BSF to convene the GSFC or any order or notification vide which the post of Additional Director General, 67 Battalion was withdrawn and in his place the Inspector General, 67 Battalion was put in command of the Battalion. The respondents have also not placed on record the notification/warrant issued thereafter by the Director General, BSF, authorising the Inspector General, 67 Battalion to convene the GSFC and notification/warrant issued by the Secretary to the Ministry of Home Affairs to confirm the finding and sentence of the GSFC. It cannot be assumed that since the Additional Director General, 67 Battalion had convened the GSFC and as such he had the requisite authority and had been so empowered by the Director General, BSF, nor it can be assumed that since the respondent No. 4/Inspector General, Border Security Force, Punjab Frontier passed the revision order and later on confirmed the finding and sentence of the GSFC, he was so empowered by the Central Government, Ministry of Home Affairs through its Secretary. These are questions of fact, which were to be shown by producing the relevant notification/warrant, empowering the respective authority to convene the GSFC and to exercise the power of confirming of finding and sentence of the GSFC. Despite the fact that the respondents took several opportunities to place on record the relevant notification/warrant, regarding empowering of the Inspector General to confirm the finding and sentence of the GSFC, but the same was not placed on record. The document, which has been placed on record, does not show that the Inspector General of the Battalion was empowered to confirm the finding and sentence of the GSFC. As seen earlier, the notification/warrant issued in 1990 by the Secretary, Ministry of Home Affairs, Central Government, empowered the Additional Director General of the Battalion to confirm the finding and sentence of the GSFC. Earlier notification/warrant, which pertains to the year 1973, empowering the Inspector General of the Battalion to convene GSFC and to confirm the finding and sentence of the GSFC, will not automatically be applicable once an authority higher in rank was so empowered by the Secretary, Ministry of Home Affairs to confirm the findings and sentence of the GSFC.
21. In Ranjit Thakur v. Union of India. 1988 (1) SLR 61 : (1988 Cri LJ 158) it was observed in para 5, inter alia, as under :-
"The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute ....."
"We are afraid, the non-compliance of the mandate of Section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. Indeed it has been so held by this Court in Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413 : (1983 Cri LJ 647) where Desai, J. referring to the purpose of Section 130 observed :
"..... Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in disposing of the objection ......... ......... This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection."
"........ The provision conferring a right on the accused to object to a member of the Court-Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court-Martial. This is preeminently a rational provision which goes a long way to ensure a fair trial."
"What emerges, therefore, is that in the present case there is a non-compliance with the mandate of Section 130 with the attendant consequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This disposes of the first limb of the contention (a)."
22. Section 65 of the Border Security Force Act provides as under :-
"A General Security Force Court may be convened by the Central Government or the Director-General or by any officer empowered in this behalf by warrant of the Director-General."
23. This section clearly shows that the Central Government or the Director-General can issue a warrant, ordering convening of the GSFC, but if the GSFC is to be convened by any officer other than the Central Government and the Director General, such officer has to be empowered in this behalf by warrant of the Director General.
24. Confirmation and Revision are provided in Chapter VIII of the Act. Section 107 of the Act lays down :-
"No finding or sentence of a General Security Force Court or a Pretty Security Force Court shall be valid except so far as it may be confirmed as provided by this Act."
25. Section 108 of the Act provides that the findings and sentences of General Security Force Courts may be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government.
26. A bare perusal of Sections 107 and 108 will go to show that unless and until the finding and sentence of the GSFC have been confirmed by the Central Government or by any officer empowered in this behalf by warrants of the Central Government, the same shall not be valid. It is, therefore, the specific provision of the Act that in order that the finding and sentence of the GSFC is to be valid, the same is to be confirmed either by the Central Government or by an officer empowered in this behalf by warrant of the Central Government.
27. It may be pointed out that the power to convene the GSFC is provided in Section 65 of the BSF Act, which has been referred to above. The GSFC may be convened by the Central Government or the Director General or by any officer empowered in this behalf by warrant of the Director General. In the instant case, in 1973, the then Director General, BSF had empowered the respondent No. 4/Inspector General, Border Security Force, Punjab Frontier, BSF Campus to convene the GSFC. After the GSFC has recorded its finding and sentence, the same is to be confirmed under section 107 of the Act in order that the finding and sentence of the GSFC become valid. The power to confirm the finding and sentence of the GSFC has been provided in Section 108 of the Act, which has also been quoted above and this power can be exercised by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. Once the GSFC is convened under orders of the empowered authority and the GFSC submits finding and sentence for confirmation, the same is to be confirmed under Section 107 of the Act by the authority, empowered under section 108 of the Act. In other words, the authority empowered to convene the GSFC is the authority, who is empowered under section 108 of the Act to be the authority to confirm the finding and sentence of the GSFC. In the instant case, though there is no notification or warrant issued under Section 65 of the Act by the Director General of BSF, empowering the Additional Director General of BSF to convene the GSFC, but the same can be reasonably inferred from the fact that the Central Government under section 108 of the Act had empowered the Additional Director General, Punjab Frontier, BSF, Jalandhar Cantt. to be the authority to confirm the finding and sentence of the GSFC, vide Annexure A dated 17-9-1990, issued under the signatures of Shri Naresh Chandra, the then Secretary, department of Home, Central Government. Since in the instant case, the GSFC had been convened by the Additional Director General, Punjab Frontier, BSF, Jalandhar Cantt., who had been empowered by the Central Government under section 108 of the Act to confirm the finding and sentence of the GSFC, the proper and competent authority to confirm the finding and sentence of the GSFC (in this case) would necessarily be the same authority, who had convened the GSFC, i.e. the Additional Director General, Punjab Frontier, BSF, Jalandhar Cantt. Viewed from this angle, I find force in the contention of the learned counsel for the petitioner that the confirmation of the finding and sentence of the GSFC in the case of the petitioner by the respondent No. 4/Inspector General, Border Security Force, Punjab Frontier, BSF Campus is not the compliance of Section 107 of the Act inasmuch as he is not the authority of the rank of Additional Director General, who had been so empowered by the Central Government under section 108 of the Act. Resultantly, the authority, who confirmed the finding and sentence of the GSFC, being respondent No. 4/Inspector General, Border Security Force, Punjab Frontier, BSF Campus, was undisputedly inferior and junior in rank to the Additional Director General, Punjab Frontier, BSF, who convened the GSFC for trial of the petitioner on the charge-sheet (Annexure P1). Therefore, the confirmation of the finding and sentence of the GSFC by the respondent No. 4/Inspector General, Border Security Force, Punjab Frontier, BSF Campus is not in accordance with the mandatory provisions of the BSF Act, as contained in Section 107 thereof. That being so, the finding and sentence of the GSFC in the case of the petitioner cannot be held to be valid under section 107 of the Act.
28. Coming to proposition No. 11, learned counsel for the petitioner contended that the alleged statement of the accused/petitioner (Annexure P 11) was recorded while in close custody and to a person in authority during the course of investigation and the same was not voluntary and as such the confessional statement (Annexure P11) could not be made the basis of conviction under section 302 of the Indian Penal Code. Coupled with this proposition, are propositions Nos. 12 and 13, which relate to the bias of the investigating Officer during the investigation as also the bias of the Law Officer, who is alleged to have mis-directed to GSFC and thereby caused substantial prejudice to the petitioner in violation of the procedure prescribed in the BSF Act/Rules. These propositions (Nos. 11, 12 and 13) are, thus, related to each other and can be conveniently discussed together.
29. The petitioner took a specific plea in para 59(h) of the writ petition that the retracted confession of the accused at Annexure P-11 could not be made the basis of conviction under the law; as it was neither voluntary nor proved and in any event, did not amount to confession of murder. Elaborating his argument, learned counsel for the petitioner contended that the prosecution had failed to discharge the burden to prove that the confessional statement (Annexure P-11) was voluntary and a simple reading of the statement (Annexure P-11) will go to show that the recording officer had included details to fill in the gaps/weaknesses of his story in which no accused can be interested. It was also pointed out that even the alleged confessional portion had not been recorded verbatim. He further pointed out that there was bias of the investigating officer which led to a reasonable conclusion of tampering/fabricating the statement of the accused in violation of Rule 48(3) and (5) of the Rules. It was also contended that the sidelined portion in Annexure P-11 contained cross-examination of the accused, which is prohibited under the provision of Rule 48(5) of the Rules. Learned counsel for the petitioner further pointed out that the petitioner in Exhibit-V of the proceedings at Annexure P-10 had stated that Annexure P-11 was got signed under threat, coercion and promise while he was under close arrest. The prosecution was relying on the alleged confessional statement, Annexure P-11 but had failed to produce any independent witnesses, before whom it was allegedly recorded, even after the same was suggested during the cross-examination.
30. The respondents in their reply to these averments have contended that the statement Annexure P-11 was made voluntarily and the recording officer had brought the actual facts before the Court. The statement made at the ROE was voluntary after the petitioner was cautioned in terms of BSF Rule 49(3) of the Rules. The allegations that the statement of the petitioner was tampered/fabricated by the recording officer, was categorically denied. It was also denied that the petitioner was cross-examined while his statement was recorded under BSF Rule 48(3). The allegation of the petitioner regarding signing his statement under threat, coercion or promise were also denied.
31. In the replication, the petitioner reiterated the averments made in the writ petition and alleged that the recording of the confessional statement (Annexure P-11) under threat, coercion and promise and getting the same signed while the petitioner was under close arrest since 3-11-1991, reveals patent violation of Section 24 of the evidence Act and Rule 48(3) and (5) of the Rules, resulting in substantial injustice to the petitioner.
32. Before dealing with the submissions of the learned counsel for the petitioner and the learned Standing Counsel for the respondents regarding the confessional statement of the petitioner being voluntary or otherwise and whether the same is in the words of the petitioner or some gaps left in the statement have been supplied by the recording officer, it will be useful to refer to the relevant provisions of the Border Security Force Act and the Rules as also Section 24 of the Evidence Act, dealing with the confessions.
33. Rule 48 of the BSF Rules deals with Record of evidence (for short referred to as 'ROE'). Sub-rule (3) of Rule 48 provides, "After all the witnesses against the accused have been examined, he shall be cautioned in the following terms : "You may make a statement if you wish to do so, you are not bound to make one and whatever you state shall be taken down in writing and may be used in evidence". After having been cautioned in the aforesaid manner whatever the accused states shall be taken down in writing."
Proviso to Rule 48(5) provides that no oath or affirmation shall be given to the accused nor shall he be cross-examined.
34. The contention of learned counsel for the petitioner is that though the statement (Annexure P-11) contains caution under Rule 48(3), but as a matter of fact, the same was never put to the accused. Apart from it, statement of the petitioner was recorded while he was in close custody and this statement was prepared by the recording officer, who obtained signatures of the petitioner under threat, coercion and promise. Learned counsel for the petitioner referred to the underlined portions of the statement Annexure PW-11 to show that the same were recorded in the shape of the cross-examination conducted on behalf of the recording officer. These underlined portions, which are being relied on in support of his contention by learned counsel for the petitioner, are as under :-
(i) "...... Suddenly a fire took place from my carbine No. 54 body No. JJ 0324 and I found that the round fired by me had hit the then sentry No. 90172617 Const. Ratna Bhai of E Coy 67 Bn BSF."
(ii) "I threw the empty case of fired round in the open sewerage drain in front of Dharamshala. I did not tell anyone that fire on Const. Ratna Bhai has been done by me."
(iii) "Commandant Sahib asked me why three rounds of Lot other than KF 86 are with me. I told him that I had not checked the Amn lot while taking it from kote 20/22 days back. He asked me to give in writing and I gave a letter regarding the changed lot of 3 rounds to SI Gurnam Singh. I had taken only one round from HC Jiwan Singh and I do not know anything about the changed lot of other two rounds. I had stated before the Court of inquiry wrongly that I told Const. Hardayal Singh about fire on Const. Ratna Bhai on 24/25 Oct. 91 night by me and that I, after collecting one round from police Constable Daljeet Singh of PS Baghapurana, had returned the round of HC Jiwan Singh on 25 Oct. 91."
(iv) "I have not fired knowingly. I am unable to think how this fire took place ...."
35. Learned counsel for the petitioner submitted that a perusal of the aforesaid underlined portions appearing in the statement (Annexure P-11) of the petitioner recorded by the recording officer clearly show that the statement of the petitioner was recorded after putting questions to him, which were in the nature of cross-examination. Apart from it, learned counsel for the petitioner contended, these underlined portions clearly demonstrate that the petitioner in the normal circumstances would not have explained such details regarding the incident and trace the availability of the ammunition etc. to the source. Learned counsel for the petitioner submitted that since the alleged confessional statement (Annexure P-11) contains the words, which were introduced with a view to provide gaps in the alleged story of the prosecution and while doing so, the petitioner was put questions in the nature of cross-examination, this statement (Annexure P-11) could not be described to be voluntary in nature and that too in the words of the petitioner and as such this statement should be excluded from consideration as it could not be held to be a retracted confessional statement of the petitioner, which could be legally admitted in evidence and that it could not relied upon being the sole piece of evidence in the circumstances to convict the petitioner on the charge-sheet (Annexure P-1).
36. Refuting these arguments, learned counsel for the respondents submitted that the statement of the accused/petitioner recorded during investigation was absolutely voluntary and was without threat, promise or coercion. Though it has been considered as one of the piece of evidence as basis for conviction under section 302, IPC, yet it was not the sole basis. The statement was recorded strictly in accordance with the provisions of the BSF Rules. Before recording his statement, after recording of the evidence of the prosecution witnesses, a warning was administered to the accused/petitioner as required under the provisions of Rule 48(3) in the presence of an independent witness, namely Sukhdev Singh.
37. Replying to this argument of the learned Standing Counsel for the respondents, learned counsel for the petitioner reiterated that the caution, as provided under Rule 48(3) of the Rules, was not in fact administered to the petitioner and at any rate, the same was not proved as a fact during the proceedings before the GSFC. It was submitted that the said witness, Sukhdev Singh, was not examined before the GSFC. Learned counsel for the petitioner also contended that there was no direct, circumstantial or documentary evidence to support the finding for the charge of murder in the proceedings. The respondents placed reliance on Annexure P-11, which on the face of it Is involuntary and inadmissible under the Evidence Act, as is also patent from the statement of the petitioner made during the trial under Rule 93. The sole reliance on such a document is proof of lack of evidence on record to support conviction. It was further submitted by learned counsel for the petitioner that the proceedings reveal that the respondents relied on the statement (Annexure P-11) in contravention of Section 24 of the Evidence Act and Rule 48(3) and (5) of the BSF Rules.
38. A perusal of the statement (Annexure P-11), prima facie, gives an impression that it does not contain the verbatim statement of the petitioner himself and the statement apparently shows that certain questions were put to the petitioner in the nature of cross-examination in order to obtain complete information about the occurrence, ammunition etc., by the recording authority. It is also not disputed that the petitioner had been in close custody since 3-11-1991, whereas the statement (Annexure P-11) was recorded on 8-12-1991. There was a gap of about 35 days between the date of close custody and the recording of statement/Annexure P-11.
39. The petitioner made a statement before the GSFC, copy Annexure P-10. It was recorded on 26-5-1992, wherein the petitioner stated, inter alia, as under :-
"On 3-11-1991, I was placed under close arrest by Shri Balwant Singh, AC and thereafter, I was also given a copy of letter purport-edly signed by the Commandant informing me the ground of my close arrest. Since 3rd Nov., 1991, I have remained under close arrest and have never been released."
In para 8, he stated, inter alia, ".... After about 15 days of my close arrest, Shri Virender Singh AC who was performing the duties of Adjt visited me and produced written paper before me and asked me to sign at the places indicated by him. He further threatened me that in case I did not sign as desired by him, I would be handed over to the civil police and declared me extremist and I would be killed by the police in a fake encounter but in case I sign the said paper as desired by him then nothing would happen to me. So under threat and promise, I signed those papers as directed by AC Virender Singh. Again after about 25 days, AC Virender Singh visited in the quarter guard and produced before me some written papers for signatures, as directed by him repeating the same threat and promise, when he had done to me at the earlier instance. I signed those papers as directed by him completely frightened. On the both occasions, nobody was present when AC Virender Singh coerced and threatened me to sign papers while making false promise. Right from the date of my close arrest, I was not allowed to meet anyone nor anybody was allowed to meet me. Even for a period of 3 months, I was not allowed to meet my family or other relative after they had not heard anything about my welfare."
In para 9 of Annexure P10, the petitioner stated before the GSFC, "I had never made any statement before Shri Virendra Singh, allegedly have been made by me voluntarily during preparation of ROE which has since been produced in my trial as Ex-'U'. I do not know at all what Shri Virendra Singh AC had written in that statement which he had got signed from me under threat and promise while I was under arrest."
In para 19, the petitioner stated :-
"I have not committed any offence nor I had fired on Const. Ratna Bhai as had been made out in alleged confession."
40. The petitioner (as would appear from perusal of his statement Annexure P-10) clearly stated that he never made a statement before Sh. Virendra Singh, the Recording Officer, which was produced in his trial as Ex-'U' and which was placed on record as Annexure P 11 in this case and he has made clear allegations about such a statement having been put to him by the aforesaid recording officer, who allegedly obtained his signatures under threat, promise and coercion. In para 8 of the statement (Annexure P-10), there are clear averments about threat being given to the petitioner that in case he did not sign the statement, he would be handed over to the civil police, declared as an extremist and would be killed by the police in a fake encounter; but in case he signed the said paper, as directed by AC Virendra Singh, then nothing would happen to him. He categorically stated that he signed those papers as directed by AC Virender Singh, Again after about 25 days, AC Virender Singh visited the quarter guard and placed before the petitioner some written papers for his signatures, under the said threat. The petitioner accordingly signed those papers as directed by him. He categorically denied the presence of any person on both the occasions, when AC Virender Singh coerced and threatened him to sign the papers while making false promise. Right from the date of his close arrest, the petitioner was not allowed to meet anyone nor anybody was allowed to meet him. Even for a period of 3 months, he was not allowed to meet his family or any other relative.
41. In the background of this statement (Annexure P-10), the statement which is described as confessional statement of the petitioner, has to be considered and examined. Tested in that background, the contention of the learned counsel for the petitioner about the same being involuntary cannot be said to be without any reasonable basis.
42. Coming to the case law relied on by the learned counsel for the petitioner regarding the inadmissibility of the alleged confessional statement, the first case law referred to is a judgment in the case of Mst. Bhagan v. State of Pepsu, 1955 Cri LJ 537, wherein it was held (at page 540) :-
"In order to make confession relevant under Section 24 it must be shown that it was made voluntarily by the person accused of an offence. So to base conviction on a confession the Court must satisfy itself that it was voluntary and true. Unfortunately in this country it appears to be well known that the police are in the habit of extorting confessions by illegal and improper means. Confessions obtained in this manner must be excluded from evidence as it is not safe to receive a statement made by an accused person under any influence of fear or favour. The burden of proving the voluntary nature of the confession lies on the prosecution, at any rate the onus, if on accused, is very light."
It was further held :-
"Expression 'person in authority' in Section 24 should be interpreted liberally. If such a person is interested or is concerned with the investigation of a case it would be sufficient to give him that authority. Village lambardars and zaildars are part of investigation machinery. It is their duty to report congnizable offences and also to join the investigation of such offences. Their position is, therefore, such that they would be considered as persons in authority. Apart from this, the position of a lambardar in village is such as to appeal to a villager as a person who is able or is likely to be able to promise him a pardon ....."
It was further held :-
"Where the confessions judicial and ex-trajudicial were voluntary but they were retracted by the prisoner, it is necessary to look for an independent corroborative evidence. The weight to be attached to such confessions depends upon the circumstances under which they were made and later retracted including the reasons given by the prisoner for retracting them. Where in the circumstances of the case, it is not safe to act upon the retracted confession as it is not possible to come to the unhesitating conclusion that the confessions were voluntarily made and were true, it is absolutely necessary to look for independent corroborative evidence in order to make them the basis of conviction. Without sufficient and substantial corroboration in material particulars it is not safe to convict the accused on retracted confession alone ....."
43. In State (Delhi Administration) v. Ranjan Raja Ram Bagkar, 1991 (2) RCR 550, a Division Bench of Delhi High Court while dealing with the appeal against acquittal ordered by Additional Sessions Judge, Delhi on a charge of murder punishable under section 302, IPC held in para 34 regarding confession made by the accused before the Captain of the Ship as inadmissible and unreliable. The appellant in that case was under arrest and was in solitary confinement and in chains. He underwent an ordeal, physical and mental. The Bench held that such a person should have been examined in the presence of a Doctor or an Advocate.
44. The learned counsel for the petitioner drawing a similarity in the instant case with that of the accused involved in Ranjan Raja Ram Bagkar's case (supra) contended that the alleged confessional statement of the petitioner was not recorded in the presence of an independent witness, muchless a Doctor or an Advocate.
45. In Nathu v. State of Uttar Pradesh, 1956 Criminal Law Journal 152, it was observed as under (at page 155) :-
"The prolonged custody immediately preceding the making of the confession is sufficient, unless it is properly explained, to stamp it as involuntary. The fact that the accused made various suggestions in the cross-examination of the CID Inspector such as that he was given bhang and liquor, or shown pictures, or promised to be made an approver, and they have been rejected as unfounded does not leave the prosecution from its duty of positively establishing that the confession was voluntary and for that purpose, it is necessary to prove the circumstances under which this unusual step was taken."
46. In Bhanwar Singh v. The State, 1988 Cri Law Journal 1054, it was held that where the exact words stated by the accused were not produced, the statement of the accused was unworthy of credit under Section 24 of the Evidence Act. That was also a case of murder.
47. In R. S. Bhagat v. Union of india, AIR 1982 Delhi 191, a learned single Judge of Delhi High Court dealt with the confession of guilt by the accused/a permanent Commissioned Officer of the indian Army, holding the rank of Lt. Col. and who was tried under section 69 of the Army Act by a General Court Martial. It was held in para 13(x) (at page 205) :-
"It is alleged by the prosecution that the accused had confessed his guilt, first to Maruti, P.W. 9, the proprietor of the shop and secondly to Mr. Kapoor, the complainant himself. It is an admitted fact that neither P.W. 8 nor the complainant referred to the fact of confession in the summary of evidence or in the Court of Inquiry. The confessions were referred to by them for the first time before the Court Martial. It is also an admitted fact that no question was put to the accused regarding the alleged confessions when his statement was recorded before the Court Martial. Extrajudicial confessions are required to be carefully scrutinised in law. The infirmities in these extra-judicial confessions are too serious. It assumes more seriousness because the accused was not permitted to examine himself as a witness. A layman's decision is bound to be swayed if he is told that the accused had made confession of guilt to the complainant and also to the shopkeeper. It is not unlikely that the members of the Court Martial were influenced by the said confessions. No reliance can be placed for drawing any legal inference against the accused on the basis of said confessions."
48. The law relating to the retracted confession of the accused is, thus, well settled. Before such a statement can be legally admitted in evidence and safely relied on for conviction of the accused, it has to be shown to have been made voluntarily, free from any influence of the man in authority and free from threat, coercion or promise and as far as possible, the statement should contain the own words of the accused. Where the accused is able to show that the statement is not free from these suspicions and that in the statement gaps have been filled by the authority who recorded the same and where the accused is able to show that the authority while recording the statement sought to cross-examine the accused to elicit more information, such a statement in law cannot be held to be voluntary in nature, free from the vices of threat, promise and coercion and as such, it will not be safe as a rule to place reliance on such a statement. Learned counsel for the petitioner has, thus, shown the bias of the investigating officer during the investigation and in obtaining the alleged confessional statement of the petitioner.
49. Coming to proposition No. 13, regarding bias of the Law Officer of GSFC, who is said to have misdirected the GSFC, causing prejudice to the accused in violation of the procedure prescribed under in the BSF Act and Rules. The contention of the learned counsel for the petitioner is that the Law Officer, who recorded and dominated the proceedings was disqualified to serve on the GSFC because he acted with bias to the substantial prejudice of the accused/petitioner in violation of Rules 60/120 of the Rules. The GSFC was, therefore, 'coram non judice'. It was further contended that the Law Officer of the GSFC failed to sum up the evidence in a balanced and impartial manner and gave misdirection on points of law and facts in issue, violated Rule 97 read with Rule 126(d) of the Rules, containing his duties, resulting in vitiation of the proceedings. It was mentioned that the petitioner had immediately after conclusion of his trial and before the revision, had made a written complaint (copy Annexure P4) to respondent No. 2 about the glaring defects, violations and bias of the Law Officer. It was further mentioned that the tone and contents of summing up of the Law Officer (in Exhibit - 'Z') gave ample proof of his bias, which inter alia were :-
(a) He gave a misdirection to the Court on point of Law on retracted extra judicial confessions :
"Hence, although as a matter of Law corroboration is not necessary at all, as a general rule a retracted confession requires cor-roboration of some kind but the amount of corroboration which the Court will look for depends on the circumstances of each case." (page 12 para 42 of summing up)
(b) He misstated about a fact in issue in his summing up. "At about 0030 hrs. when Ct. Ratna Bhai was on duty the accused fired one round at him from his carbine and caused a bullet injury in his head" (page 6 para 22). No such statement has been made by any witness.
(c) The bias of Law Officer is evident from as he expressed his opinion at length on the facts of the case at page 14 paras 46 and 47 of the summing up including "you also have to consider some of the important links of the case, in the form of facts brought and by prosecutor through various witnesses, which are in corroboration with the retracted confession of the accused".
(d) The Law Officer failed to give advice on a point of Law which was material in the case, namely, conviction of offences not charged in terms of Sections 221 and 222 of Cr.P.C. read with Section 93(6) of the Act. The Law Officer restricted his advise to 'accident' and failed to refer to other offences including under section 304A, I.P.C. as was essential in the case (page 5 para 20 of summing up).
50. Controverting these allegations of the petitioner made in the writ petition, the respondents alleged that respondent No. 5 acted without any bias and discharged his duties honestly, faithfully and within the ambit of the BSF Act and Rules. The trial of the petitioner was impartial and according to law. It was reiterated that the respondents have acted with total impartiality and without bias and the petitioner has been given the fullest opportunity to defend his case and no prejudice has been caused to the petitioner. Regarding the written complaint made by the petitioner to respondent No. 2, it was contended that the petitioner submitted a complaint. However the same was described to be false and frivolous. It was stated that the complaint was duly examined and rejected. The petitioner was intimated about it in writing. It was submitted that the Law Officer had not misdirected the Court. The petitioner had not quoted the full text of advice of the Law Officer and had, in a way, tried to distort the facts. There is evidence to establish that Ct. Ratna Bhai was on duty at the relevant time and the round fired by the petitioner had hit him causing his death. The allegation of bias against the Law Officer was described as totally false and baseless. It was stated that the Law Officer had discharged his duties and rendered advice wherever required, within the scope and ambit of his duties defined in the BSF Act and Rules made thereunder.
51. Learned counsel for the respondents contended that neither the Investigating officer, nor the Law Officer had any ill-will against the petitioner or had some basis of personal enmity. The investigation and the trial were conducted strictly as per the procedure prescribed under the BSF Act/Rules. Regarding the Law Officer, it was specifically submitted that he neither empowered nor duty bound to direct the members of the Court. He merely endorses his advice and explains the connotation of each word, submission and piece of evidence in the legal parlance as compared to common parlance. Further he is subjected to strict scrutiny by the Chief Law Officer of the force for every word of advice rendered, which also includes summing up. By exhibiting a partisan attitude, he cannot hazard the risk of disciplinary action against himself by his superior authorities. On this basis, it was urged that the allegations of bias against the said officers were baseless, unfounded and unwarranted. Coming to the misdirections allegedly given by the Law Officer, it was urged by learned counsel for the respondents that he failed to understand as to what type of misdirection was given by the Law Officer and what type of substantial prejudice was caused to the petitioner. The function of the Law Officer is only to render legal assistance to the Court and to assist the Court to come up on a just decision. The ultimate decision is to be taken by the Court are not by the Law officer, merely being an employee of the Force, he cannot be brought into controversy. It was further submitted that the Law Officer will not dare to give direction to an officer superior to him in rank.
52. Before dealing with the submissions regarding the alleged bias on the part of the Law Officer of the GSFC, the relevant provisions regarding the Law Officer, particularly his powers and duties, may briefly be noticed :
Rule 126 of the BSF Rules provides as under :-
126. Power and Duties of Law Officer. - Where a Law Officer has been named to act on the Court, he shall, -
(a) Give his opinion on any question of law relating to the charge or trial whenever so required by the Court, the prosecutor or the accused;
(b) inform the Court of any irregularity or other infirmity in the proceedings.
(c) inform the convening officer and the Court of any infirmity or defect in the charge or in the constitution of the Court;
(d) sum up the evidence and give his opinion on any question of law, before the Court proceeds to deliberate upon its findings.
(2) It shall be the duty of the Law Officer to ensure that the accused does not suffer and disadvantage in consequence of his position as such, or because of ignorance or incapacity to examine or cross-examine witnesses and for this purpose the Law Officer may, with the permission of the Court, call witnesses and put questions to them which appear to him to be necessary or desirable.
(3) In the discharge of his duties, the Law Officer shall maintain an attitude of strict impartiality.
(4) Where any opinion has been given by the Law Officer to the Court on any matter before it, it may be entered in the proceedings, if the Law Officer or the Court desires it to be entered.
(5) The Law Officer shall represent the Chief Law Officer at a Security Force Court.
53. A perusal of Rule 126, quoted above, will go to show that the Law Officer is required to assist the GSFC and apprise it on the legal aspect of the matter and to give his opinion on any question of law relating to the charge or trial whenever so required by the Court, the prosecutor or the accused. It is his duty to inform the Court of any irregularity or other infirmity in the proceedings. In the end, it is his duty to sum up the evidence and give his opinion on any question of law, before the Court proceeds to deliberate upon its findings.
54. The other important duty cast on the Law Officer provided under sub-rule (2) is to ensure that the accused does not suffer any disadvantage in consequence of his position as such, or because of ignorance or incapacity to examine or cross-examine witnesses and for this purpose the Law officer may, with the permission of the Court, call witnesses and put questions to them which appear to him to be necessary or desirable.
55. Sub-rule (3) of Rule 126 is salutary in its contents inasmuch as it charges the Law Officer with the duties, to maintain an attitude of strict impartiality. In other words, the Law Officer is not expected to conduct himself in any such manner, which may throw any doubt regarding his impartiality.
56. It is in this background that the averments made in the petition assume significance. As pointed out above, the petitioner alleged several acts to show that the Law Officer did not act impartially and did not ensure that the accused/petitioner was not put to any disadvantage in consequence of his position.
57. Coming to the charge-sheet itself, it is relevant to note that the Law Officer did not consider the same in the background of the confessional statement, which was eventually relied on by the GSFC to conduct the trial of the petitioner and to appraise the GSFC the circumstances, in which the occurrence allegedly took place. The confessional statement (Annexure P-11), which is sought to be relied on by the GSFC says :-
On the night intervening 24 and 25 Oct. 91, No. 71232060 HC Hardev Singh/petitioner was guard Commander of the guard at main gate at Janta Samiti Dharmshala Baghapurana E Coy 67 Bn BSF location. His cot was on the right inside the gallery adjoining main gate of Dharamshala and since 2130 hrs on 24 Oct. 91, he was sleeping on his cot with his legs towards the main gate. His carbine was lying on his cot near his left arm. At about midnight on the night intervening 24 and 25 Oct. 91, he felt very inconvenient and it seemed to him that he is not able to breath properly. Suddenly a fire took place from his carbine No. 54 body No. JJ 0324 and he found that the round fired by him had hit the then sentry No. 90172617 Const. Ratna Bhai of E Coy 67 Bn BSF. The bullet had hit Const. Ratna Bhai in the back side of his head and Const. Ratna Bhai immediately fell on the ground near main gate of Dharmshala. The petitioner threw his carbine on his cot. Other two Sentries const. P. K. Sinha and Cost. Hardayal Singh became stand-to in the morcha and the petitioner went to inform the Coy Comdr. After this unfortunate fire he became very fearful and disturbed ........
In the latter part of his statement, the petitioner stated, "In case if I would have fired intentionally on Const. Ratna Bhai, then there was enough time available to me to escape but, because I had not fired intentionally, I did not run anywhere from the post ...." 58. This part of the statement, as contained in Annexure P-11, which has to be read as a whole, would go to show that the petitioner intended to state that the fire took place in the late night when during the sleep he felt uneasy and he did not intend to cause the death of Constable Ratna Bhai and that the shot had hit incidentally on the backside of Constable Ratna Bhai. It was the duty of the Law Officer to point out that the charge should also be framed in the alternative of culpable homicide not amounting to murder under Section 304, Part-II of the Indian Penal Code or if it was altogether a rash and negligent act on the part of the accused, he could be charged under section 304A of the Indian Penal Code. It seems that this aspect of the charge was not considered by the Law Officer.
59. Apart from it, the law relating to the confessional statement of the accused was not properly stated before the GSFC. The other acts on the part of the Law Officer have already been noted above. It may be pointed out that the denial of the allegations of bias on the part of the Investigating Officer and the Law Officer is general and vague. The specific averments made in the petition in this regard were not specifically denied. The petitioner reiterated those averments in the rejoinder.
60. In Sansar Chand v. Union of India, 1980 (3) SLR 124 a Division Bench of the Himachal Pradesh High Court considered the plea of bias vitiating the proceedings of the Court martial. The petitioner before the High Court was a Major in the Army. He was Court-martialled and dismissed from service. The petitioner challenged the very constitution of Court-Martial and took the plea that the same was coram-non-judice. Dealing with the plea of the petitioner the Bench observed in para 30 as under :-
"It must be borne in mind that not only a bias but a real likelihood of bias will also result in disqualification. The Supreme Court in S. Parthasarathi v. State of Andhra Pradesh, 1974(1) SLR 427 : (AIR 1973 SC 2701) dealing with a similar question observed thus :
"The question then is whether a real likelihood of bias existed is to be determined on the probabilities to be inferred from the circumstances by Court objectively or, upon the basis of the impressions that might reasonably be left on the minds of the party aggrieved or the public at large.
The tests of real "likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it. Whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seem to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry, nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision. See per Lord Denning M. R. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968) 3 WLR 694 at p. 70 etc."
61. In R. S. Bhagat v. Union of India, AIR 1982 Delhi 191 considering the directions of the Judge-Advocate to the members of the Court-Martial, the learned single Judge held in para 12 inter alia as under (at page 200) :-
12(1) "I am inclined to agree with the petitioner's submission that there is misdirection by the Judge-Advocate leading to the erroneous conclusions of law and fact reached by the Court martial. The counsel for the respondents submits that mere misdirection is no ground for issuing writ of certiorari to a quasi-Judicial tribunal. I think that the scope of certiorari depends upon the constitution and character of a quasi-Judicial body. The nature of misdirection is also relevant. Court Martial is constituted by laymen with no legal background. It is an ad hoc body for a specific case. This body sits as a criminal Court. Contrast it with an Income-tax Tribunal or Sales Tax Tribunal. They are specialised Tribunals. They have expertise. They perform judicial function as permanent Tribunals. In this process they acquire judicial experience. In para 27 of his summing up the Judge-Advocate has dealt with the question of circumstantial evidence and read out the brief summary of law from the manual. The said summary of law on the circumstantial evidence is not complete and does not correctly bring out true legal principles of circumstantial evidence in a criminal trial.
(ii) In Umed Bhai Jadavbhai v. State of Gujarat, AIR 1978 SC 424 : (1978 Cri LJ 489), the Supreme Court has collected all the relevant principles and the law is stated in the following words (at page 492; of Cri LJ) :-
"It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution must inevitably and exclusively point to the guilt of the accused and there should be no such circumstances which may reasonably be considered consistent with the innocence of the accused. Even in the circumstantial evidence the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case."
In the light of this law, the Judge-Advocate should have expressly brought home to the members of Court Martial the pieces of evidence which were consistent with the innocence of the petitioner and the missing links in the evidence. The summing up gives an impression (and will be more so for the members of the Court Martial who were lay citizens) that guilt of the petitioner was the only possible conclusion.
(iii) The Judge-Advocate failed to bring out to the notice of the Court Martial that the alleged extra-judicial confessions were not put to the petitioner while statement was being recorded, and thus he had no opportunity to explain them. In any criminal trial, this is a fatal defect. It is moreso in a Court Martial the members of which are ordinary citizens without legal training. Such people are easily carried away by the fact that an accused has confessed his guilt. In these circumstances the failure on the part of the Judge-Advocate must be held to have caused serious prejudice to the accused/petitioner.
(iv) On Aug. 8, 1974, the petitioner requested the Presiding Officer to examine himself as his witness. He also showed his willingness to be cross-examined. The Court overruled this submission on the advice of the Judge-Advocate. He advised that Army Rules 58(2)(a) and 59(b) do not permit any oath to be administered to an accused. He further advised that Section 342A of the Cr.P.C. was not applicable to Court Martial under Army Act. The advice of the Judge-Advocate and decision of the Court are patently erroneous in law.
(v) The prohibition of administering an oath in R. 58(2)(a) is no doubt mandatory. But it is mandatory in the sense that an accused cannot be forced to be a witness against himself, Rule 58(2)(a) is merely a paraphrase of Article 20(3) of the Constitution. Article 20(3) states "No person accused of an offence shall be compelled to be a witness against himself." The bar is on compulsion not on a voluntary offer. Section 342A, Cr.P.C. in this sense, does not create new right of being a witness for himself but merely recognises one which was already available to all accused. Where an accused voluntarily wants to examine himself, he is included in "any witnesses" envisaged by R. 58(1). The decision of the Court martial is clearly contrary to the provisions of R. 58(1).
(vi) Another serious legal infirmity in the conduct of the Court Martial is not summoning of the original bill books of M/s Shantala Silk and Sarees although an express request in writing was made by the accused ......... Court Martial is a criminal Court and by virtue of Section 135 has full power to compel a person to produce documents. Under the Evidence Act accused has a right to utilise bill book for his defence. The failure of the Court Martial to summon the bill books is contrary to Evidence Act. It has resulted into denial of opportunity to defend and has caused serious prejudice to the accused.
62. So far as the powers and duties of the Law Officer are concerned, Rule 126 of the BSF Rules, which has been quoted above. clearly provides his role during trial conducted by the GSFC. The said Rule casts duties upon the Law Officer to advise the GSFC about the legal aspects of the case and he has to maintain an attitude of strict impartiality. He is also to ensure that the accused is not in any way prejudiced. At the cost of repetition, it may be mentioned that Rule 126(3) specifically charges duty on the Law Officer to ensure that the accused does not suffer any disadvantage in consequence of his position as such. In this view of the matter, the submission of the learned counsel for the respondents that the duty of the Law Officer is merely to give advice to the GSFC and that he has no other role to play during trial, is not supported by the provisions contained in Rule 126 of the BSF Rules. The lapses on the part of the Law Officer, as pointed out by the petitioner, show that at any rate, the attitude of the Law Officer was not being impartial and that he did not properly ensure that the accused/petitioner did not suffer any disadvantage during the trial in consequence of his position as such The procedural safe-guards and the duty cast on the Law Officer having been violated, the prejudice caused to the petitioner/accused is shown at the face of it.
63. Learned counsel for the petitioner raised the following proposition (No. 14) regarding the statutory petition and the complaint :-
"Whether the statutory petitions dated 2-6-1992 and 14-2-1993 under Section 117 of the Act, read with Rules 168 & 169 of the Rules were duly considered and decided by passing a speaking order as per orders of Hon'ble High Court dated 1-6-1993 in Civil Writ Petition No. 6436 of 1993, read with orders dated 22-12-1993 in COCP No. 788 of 1993 ?
64. The petitioner had submitted a complaint on 6-6-1992 to the Director General, on the subject :-
"Complaint against unfair trial and violation of BSF Act and Rules." In paras 4 to 8 thereof the petitioner made the following allegations against the Law Officer :-
4. "Although I had not committed any offence, yet the behaviour of Law Officer right from the commencement of the trial was biased, prejudicial and partial towards my defence."
5. "He had been openly prompting the prosecution witnesses for giving replies during their cross-examination by my defence counsel/defending officer and everytime showed reluctance and hesitation to bring on the trial proceedings of the answers of the PWs, which tendered to be in favour of my defence. Every time he openly remarked in the Court that whenever evidence by defence counsel tried to bring on record was hearsay at time, to bring relevant as well as irrelevant facts which contradicts the facts in issue on record."
6. "The Law Officer had during the trial prejudiced the mind of members and presiding officer against my defence and acted in most impartial and in biased manner."
7. "The Law Officer in fact acted as a prosecutor and a proxy of Comdt. 67 Bn, BSF in my trial and violated the oath taken by him for being impartial during the trial."
8. "To quote specific instance of his attitude, prosecutor closed his evidence at 1200 hrs on 26 May 92, thereafter I was called upon to produce any defence witness if desired as per Rule 93 of BSF Rules. I opted to submit a written statement at 1600 hrs on 26 May, 92 and till then the Court was adjourned. After the re-assembling of the Court at 1600 hrs on 26 May 92, I submitted my written statement. However, after this on the advice of the Law Officer, Court put questions to me as per Rule 93(2) to which I had to answer without consulting my Defence counsel/Defending Officer. Rule 93 sub-rule 2 makes it abundantly clear that this rule can be available by the Court soon after the witnesses for the prosecution had been examined and before I was called upon to put my defence."
65. A prayer was made by the petitioner to set-aside the whole proceedings of his trial and for ordering his trial after attaching him to a different Unit, by detailing another Law Officer and new Court. A copy of this complaint was sent to the Additional Director General, (by name), FTR HQ BSF Jalandar Cantt (Pb). Thereafter the petitioner sent post confirmation petition dated 14-3-1993 under Section 117 of the BSF Act 1968 against the finding and sentence of General Security Force Court (GSFC) held at 67 BN BSF HQ Mamdot, Ferozepur, Punjab from 14th May, 1992 to 01st June, 1992 and 22nd September, 1992 and confirmed by IG BSF, Punjab on 19th November, 1992 including-interim prayer for suspension of sentence/release on parole. Section 117 of the BSF Act reads as under :-
(1) Any person subject to this Act who considers himself aggrieved by 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, and 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 any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any security Force Court which has been confirmed, may present a petition to the Central Government, the Director-General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director-General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.
66. The grievance of the petitioner is that the complaint and the statutory complaint filed under section 117 of the Act were not disposed of by the competent authorities and the same were kept pending, which led to the filing of a Civil Writ Petition No. 6436 of 1993, decided on 1-6-1993 and then a COCP No. 788 of 1993 had to be filed by him. The stand of the respondents in this regard is that the statutory petition under section 117 of the Act was duly considered and rejected by the competent authorities. Since the authority which disposed of the petitions was not a Court, it could not, therefore, be subjected to the rigours of the principles of natural justice. Learned counsel for the respondents placed reliance on the decision of the Hon'ble Apex Court in S. N. Mukherjee v. Union of India, AIR 1990 SC 1984 : (1990 Cri LJ 2148).
67. Learned counsel for the petitioner relied on the decision in C. Navamesswara Reddy v. Government of Andhra Pradesh, 1998 (1) SLR 782 : (AIR 1998 SC 939). In support of his argument that the petition and the statutory representation made by the petitioner were decided and rejected by a non-speaking order and were vitiated in law, which showed non application of mind by the concerned authorities.
68. The other decision relied on by learned counsel for the petitioner is in case Ram Phal v. Government of Haryana, 1996 (6) SLR 801, where a learned single Judge of this Court held that where the Appellate Authority while rejecting the appeal preferred by delinquent against order the punishment had not followed the law and dismissed the appeal by a non-speaking and cryptic order without even referring to the various grounds taken by the petitioner in his memorandum of appeal, such an order cannot be upheld.
69. In S, N. Mukherjee v. Union of India, AIR 1990 SC 1984 : (1990 Cri LJ 2148) (supra), it was held that (at page 2164; of Cri LJ): "Reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the Court-martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. However, it is open to the person aggrieved by such an order to challenge the validity of the same before the Supreme Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings."
It was further observed :-
"In so far as the findings and sentence of a Court-martial and the proceeding for confirmation of such findings and sentence by the Chief of Army Staff or Central Govt. the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same. Has the legislature made a departure from the said scheme in respect of post-confirmation proceedings ? There is nothing in the language of sub-section (2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post-confirmation proceedings which may require recording of reasons for an order passed on the post-confirmation petition even though reasons are not required to be recorded at the stage of recording of findings and sentence by a Court-martial and at the stage of confirmation of the findings and sentence of the court-martial by the confirming authority. With regard to recording of reasons the considerations which apply at the stage of recording of findings and sentence by the Court-martial and at the stage of confirmation of findings and sentence of the Court-martial by the confirming authority are equally applicable at the stage of consideration of the post-confirmation petition. Since reasons are not required to be recorded at the first two stages the said requirement cannot be insisted upon at the stage of consideration of post-confirmation petition under Section 164(2).
Though a person aggrieved by the finding or sentence of a Court-martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a Court-martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the Court-Martial. Since the person had no legal right to make a representation at the stage of confirmation of findings and sentences the non-consideration of the same by the confirming authority before the passing of the order of confirmation would not vitiate the said order."
70. In view of the law laid down by the Hon'ble Apex Court in S. N. Mukherjee v. Union of India, (supra) no fault can be found with the order disposing of the complaint as well as the statutory post confirmation petition of the petitioner filed under Section 117 of the BSF Act.
71. Learned counsel for the petitioner contended that the petitioner was denied the assistance of his counsel in revisional proceedings. It is not disputed that the petitioner was defended during trial before the GSFC by his counsel Mr. D. S. Dhillon Advocate. Apart from the said counsel, Mr. Dhillon, the petitioner was provided with the assistance of Mr. Balbir Singh, Second in Command, 34 Battalion, BSF. In the written statement, the respondents have categorically denied the allegation of the petitioner regarding his being defenceless in revisional proceedings. It was specifically mentioned in the written statement in paragraph 57(b), inter alia, as under :-
"....... The true position is that the petitioner was provided with the services of Sh. Balbir Singh, Second-in-command, 34 Bn BSF. In addition to that, the petitioner had also engaged a defence counsel, namely Sh. D. S. Dhillon, Advocate, Sh. Dhillon had defended the petitioner throughout the GSFC proceedings. As regards the revision of sentence, the petitioner did not make any request for the presence of Sh. Dhillon or any other civil Advocate nor requested the Court for any adjournment on this count. Sh. Balbir Singh, Second-in-command was, however, present during the revision proceedings and had defended the petitioner as per the provisions of the BSF Act and the Rules made thereunder. The plea of the petitioner that he was denied the services of defence counsel during trial is totally baseless and misleadings."
72. In view of the stand taken in the written statement and further in view of the fact that it is not disputed that Shri Balbir Singh, Second-in-command was assisting the petitioner during the revisional proceedings and further keeping in view the fact that there was no request made by the petitioner during revisional proceedings for time to engage counsel to represent his case in revisional proceedings, I find no merit in the submission of the petitioner that he was denied the services of defence counsel in revisional proceedings.
73. It may be mentioned that the case of the prosecution against the petitioner during trial before the GSFC mainly rested on circumstantial evidence and the confessional statement of the petitioner, which was subsequently retracted. As discussed above, the confessional statement, which was relied on by the prosecution against the petitioner, was legally inadmissible in evidence and the same cannot be considered for basing conviction of the petitioner. In the absence of the retracted confessional statement of the petitioner, there is no other evidence left to support the finding of conviction on the said charge of murder against the petitioner and as such, it is a case of practically no evidence against the petitioner.
74. It is, thus, evident that the petitioner was seriously prejudiced in his trial by the GSFC and the finding and sentence passed by the GSFC were confirmed by the confirming officer, who was junior in rank than the officer, who convened the GSFC. It has also been found that the GSFC committed error in law in placing reliance on the confessional statement of the petitioner, which was legally not admissible in evidence, having been vitiated by threat, coercion and promise. Consequently, there was no evidence before the GSFC to connect the petitioner with the offence with which he was charged, as being a case of practically no evidence against him. In view of the matter, I do not propose to enter into the other submissions of the petitioner regarding the challenge to the vires of certain provisions of the BSF Act and BSF Rules.
75. Lastly, it was contended by learned counsel for the petitioner that the order dated 28-11-1992 (copy Annexure P8) passed by the Commandant of 67 Battalion, BSF Mamdot/Ferozepur, dismissing the petitioner from service w.e.f. 28-11-1992 is illegal inasmuch as the Commandant of the Battalion could not sit over the finding and sentence passed by the GSFC, which were approved by the confirming authority. Apart from it, the Commandant of the Battalion passed the order of dismissal of the petitioner from service in view of his being punished after trial by the GSFC and awarding of punishment to suffer imprisonment for life. The order Annexure P8, which is impugned in the writ petition, reads as under :-
"ORDER
1. No. 71232060 HC Hardev Singh of this Unit, was tried by GSFC held at Bn HQ Mamdot w.e.f. 14-5-92 to 1-6-92 and revision of same was held on 22-9-92 under section 46 of BSF Act 1968 and awarded punishment to suffer "imprisonment for life".
2. He is hereby dismissed from service w.e.f. 28 Nov., 92 under provision of BSF Rule 23(A).
3. He has also been struck off from the strength of unit w.e.f. the same date.
Sd/-
Seal Commandant 67 Bn BSF"
76. The impugned order (Annexure P8), which has been quoted above, goes to show that the order of dismissal of the petitioner from service is the direct consequence of his conviction and sentence passed by the GSFC on the charge of murder, as aforesaid. Since the finding of the GSFC regarding the guilt and sentence against the petitioner deserves to be set-aside for the reasons mentioned above, the impugned order (Annexure P8) regarding the dismissal of the petitioner from service as a consequence deserves to be set-aside.
77. Resultantly, this petition is allowed and the impugned orders of finding and sentence (Annexures P2 and P6) passed against the petitioner as also the order of his dismissal from service (Annexure P8) are set-aside. The petitioner shall be released from custody forthwith, unless wanted in connection with any other case.
78. Petition allowed.