Calcutta High Court (Appellete Side)
Surjeet Singh vs Union Of India & Ors on 21 August, 2013
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
21.08.2013 W.P. 9296(W) of 2007
ss
Surjeet Singh
Vs.
Union of India & ors.
Mr. Kamalesh Bhattacharya
Mr. Mintu Kumar Goswami
... For the petitioner
Mr. Pratip Kumar Chatterjee
.... For the Union of India
Mr. Bhattacharya, learned Counsel appearing for
the writ petitioner submits that the writ petitioner was
employed as Enrolled Follower (Washerman) in Border
Security Force. The writ petitioner was served with a
charge-sheet on 13th April, 2003 by the Commandant, 62
Battalion, Border Security Force. The charge was for
committing rape of Miss Taslima Khatoon.
Mr. Bhattacharya submits that the proceeding was
conducted by the General Security Force Court under the
B.S.F. Act, 1968.
Mr. Bhattacharya submits that ultimately the
concerned Court found that the writ petitioner was not
guilty of committing rape punishable under Section 376 of
Indian Penal Code. But was guilty of using criminal force
to a woman with intention to outrage her modesty
punishable under Section 354 of Indian Penal Code.
2
Mr. Bhattacharya submits in the charge-sheet there
was an allegation of rape but the finding is something
different. He submits that the writ petitioner was never
served with the fresh charge-sheet nor any amended
charge-sheet was served nor there was any trial for any
alleged offence if at all committed under Section 354 of
Indian Penal Code. He submits that the entire action is
violative of principle of natural justice as well as contrary
to the rules and law applicable in this regard.
Mr. Bhattacharya submits that the writ petitioner
was wrongfully terminated. Therefore, the order impugned
passed by the General Security Force Court as well as the
appellate authority should be set aside and a direction
should be given to the respondent authority for
reinstatement of the petitioner.
Learned Counsel appearing for the Border Security Force submits that the concerned authority is entitled to punish on a different charge under Section 93(6) of the Border Security Force Act, 1968. According to him, the General Security Force Court can punish a person charged on any other offence of which he might have been found guilty.
Learned Counsel submits that the writ petitioner 3 was found guilty under Section 354 of the Indian Penal Code. Therefore, he was punished. There was no illegality whatsoever on the part of the respondent authority. Learned Counsel further submits that Rule 57(2) permits the Court to amend the charge.
Heard the learned Counsel appearing for the parties and considered the materials available on record. It appears that the charge-sheet clearly indicates that the writ petitioner committed rape of Miss Taslima Khatoon on 11th July, 2002 and on that basis a proceeding was drawn and the General Security Force Court tried on the same. However, in order passed by the General Security Force Court it appears that the charge failed. It also appears that the writ petitioner was also guilty of using criminal force to a woman with intention to outrage her modesty punishable under Section 354 of Indian Penal Code and the writ petitioner was removed from service. It appears that the charge-sheet was never amended and the petitioner was not given an opportunity to defend properly. In this regard it is very relevant to note the rule referred by the learned Counsel appearing for the Border Security Force i.e. Rule 57 sub-rule (2) reads as follows :-
"57(2). If at any time during a trial at which there is a 4 Law Officer, it appears to the Court, before it closes to deliberate on its findings, that it is desirable in the interests of justice to make any addition to, omission from or alteration in, a charge which cannot be made under sub-rule (1) of this rule it may, if such addition, omission, or alteration can be made without unfairness to the accused, and with the concurrence of the Law Officer, so amend the charge."
In view of the aforesaid provision, the concerned authority was obliged to amend the charge and ought to have given an opportunity to the writ petitioner concerned to defend himself. But in the instant case no amendment was made rather it was unilaterally found that the writ petitioner is guilty of using criminal force to a woman with intention to outrage her modesty punishable under Section 354 of the Indian Penal Code.
In my view, the concerned authority acted contrary to the procedure, which is a safeguard for the writ petitioner. In this regard it is very relevant to refer the judgement cited by Mr. Bhattacharya reported in 1985 Lab.I.C. page 269 (Harbans Singh and others Vs. Union of India and others). The Hon'ble Court in that decision held that in every trial, whether of a summary nature or otherwise, it is required that procedure is punctually observed. The procedural law cannot be held to be 5 directory in nature. It is mandatory because it gives an opportunity to an offender to defend himself and if the procedure is violated, the opportunity of defending is taken away, more so when the punishment is sought to be inflicted. Procedural safeguards have the protection of law if the punishment is given in violation of the procedural safeguards and in violation of the mandate contained in the Rules, the punishment becomes bad in the eye of law and shall have to be struck down because it will be violative of the guarantees contained in Article 14 of the Constitution.
In my view, the ratio of the judgement is clearly applicable in the instant case. No amendment of charge- sheet was made, no opportunity was given and the procedure applicable in that regard was not followed. Therefore, in my view, the order impugned passed by the General Security Force Court as well as the appellate authority is not sustainable in the eye of law and therefore, the same is set aside. The respondent authorities are directed to reinstate the writ petitioner without any further delay. However, the writ petitioner will get 50% of his backwages.
Mr. Bhattacharya submits that the writ petitioner 6 was sentenced to suffer rigorous imprisonment for one year.
I direct the respondent authorities to pay Rs.20,000/- as compensation to the writ petitioner and the payment should be made at the earliest possible preferably within a period of four weeks from the date of communication of this order.
The writ petition is allowed. There would be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
,, (Ashoke Kumar Dasadhikari, J.)