Rajasthan High Court - Jodhpur
Union Of India And Ors vs Manohar Singh on 1 December, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:50351-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 598/2014
Union Of India And Ors.
----Appellant
Versus
Manohar Singh
----Respondent
For Appellant(s) : Ms. Laxmi Bohra on behalf of Mr.
Dhanraj Vaishnav
For Respondent(s) : Mr. K.K. Shah
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE BIPIN GUPTA Judgment
1. Date of conclusion of arguments 17.09.2025
2. Date on which judgment was reserved 17.09.2025
3. Whether the full judgment or only the operative part is pronounced: Full Judgment
4. Date of pronouncement 01.12.2025 Per Dr. Pushpendra Singh Bhati, J:
1. The present Special Appeal (Writ) has been filed by the Union of India under Article 225 of the Constitution of India, assailing the judgment dated 07.01.2014 passed by the learned Single Bench in S.B. Civil Writ Petition No. 1184/1994, Manohar Singh v. Union of India & Ors.
1.1. In the aforesaid writ petition, the writ petitioner-respondent had challenged the order dated 20.05.1993 issued by the Inspector General, Kashmir FTR BSR, Commanding Officer, Srinagar, whereby the findings and sentence awarding five years' rigorous imprisonment along with dismissal from service were (Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (2 of 10) [SAW-598/2014] confirmed, as well as the subsequent appellate order dated 27.07.1994 passed by the Director General, BSF, New Delhi, affirming the said punishment. The learned Single Bench of the Hon'ble Court allowed the writ petition; aggrieved by which the present appeal has been preferred.
2. The brief facts culminating in the present special appeal are that the writ-petitioner- respondent herein (hereafter referred to as the respondent), then serving as a Driver in the Border Security Force (BSF), came to be charged for the offence punishable under Section 376 of the Ranbir Penal Code (RPC), along with other members of an ambush party, on the allegation that he ravished two women. The remaining members of the ambush party were also implicated in offences relating to murder and causing grievous hurt under various provisions of the RPC. 2.1. The incident is alleged to have occurred during the intervening night of 17/18 May 1990 in a curfew-bound area at the Acchabal-Diagam-Kukamag Road Tri-junction. On completion of investigation, the local police submitted a charge-sheet before the competent Magistrate against 18 accused persons; however, the petitioner was not arrayed as an accused therein.
Notwithstanding this, cognizance was taken against all 18 persons. Subsequently, invoking the powers under Section 80 of the Border Security Force Act, 1968, the proceedings were transferred for trial before the General Security Force Court (GSFC), in accordance with the BSF Act and Rules.
(Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (3 of 10) [SAW-598/2014] 2.2. Before the GSFC, a charge-sheet was framed against eight personnel including the petitioner, attributing to him the offence under Section 376 RPC in respect of the alleged rape of Mrs. "M" and Mrs. "A". During the course of trial, the GSFC examined 24 prosecution witnesses, including both prosecutrix. 2.3. The petitioner has consistently asserted that his name did not find place in the FIR nor in the statements recorded under Section 161 Cr.P.C., and that he was not identified by either of the prosecutrix during two test identification parades. He has alleged grave procedural infirmities in the proceedings before the GSFC and maintained that he was falsely implicated and made a scapegoat, particularly when six prosecution witnesses, initially arraigned as accused, did not depose against him. He further contended that the prosecution failed to adduce any credible ocular or medical evidence substantiating the charge. 2.4. Upon conclusion of trial, the GSFC passed judgment on 10.03.1993 convicting the petitioner, sentencing him to five years' rigorous imprisonment and ordering his dismissal from service. The sentence was confirmed by the Inspector General, Kashmir Frontier, BSF on 20.05.1993. The statutory petition preferred under Section 117(2) of the BSF Act was dismissed by the Director General, BSF on 27.07.1994.
2.5. Aggrieved thereby, the petitioner instituted a writ petition before the Hon'ble Court, which came to be allowed; the orders dated 20.05.1993 and 27.07.1994 were quashed, the petitioner was directed to be reinstated with all consequential benefits (Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (4 of 10) [SAW-598/2014] except back wages, and was awarded a lump-sum compensation of Rs. 2,00,000/- for illegal confinement along with Rs. 10,000/- as litigation costs. The Union of India, being dissatisfied, has preferred the present special appeal.
3. Ms. Laxmi Bohra on behalf of Mr. Dhanraj Vaishnav, Learned counsel for the appellant- Union of India submitted that the Hon'ble Single Bench gravely erred in exceeding the settled and narrow limits of judicial review permissible under Article 226 of the Constitution in matters arising out of General Security Force Court proceedings. It was contended that the High Court cannot re-appreciate or re-evaluate evidence recorded by military courts, as repeatedly affirmed by the Hon'ble Supreme Court in Union of India v. Budupalli Gopalaswamy, B.C. Chaturvedi v. Union of India, and Union of India v. Major A. Hussain. It was submitted that the impugned order amounts to sitting in appeal over the findings of the GSFC, which is impermissible.
3.1. Learned counsel further submitted that the GSFC had recorded evidence of 24 prosecution witnesses, including the prosecutrix, and arrived at a reasoned finding of guilt against the respondent. The sentence dated 10.03.1993 was duly confirmed by the Inspector General, Kashmir Frontier, BSF on 20.05.1993, and the statutory petition under Section 117(2) of the BSF Act was rejected by the Director General, BSF on 27.07.1994. It was contended that the Hon'ble Single Bench could not have interfered with concurrent findings of fact.
(Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (5 of 10) [SAW-598/2014] 3.2. Learned counsel also submitted that the Hon'ble Single Bench exceeded its jurisdiction by re-assessing the credibility of witnesses, examining the medical evidence, and evaluating the identification process, an exercise reserved only for appellate courts and not for judicial review.
3.3. Learned counsel also submitted that the Hon'ble Single Bench erred in not only setting aside the conviction and dismissal order but further directing reinstatement into service with consequential benefits and awarding monetary compensation of ₹2,00,000 and litigation cost of ₹10,000. It was contended that such relief could not have been granted in the absence of a conclusive finding of malicious prosecution or proven miscarriage of justice.
3.4. Learned counsel further submitted that the incident involved extremely serious allegations of rape, murder and violence committed by uniformed personnel in a conflict-sensitive and curfew-controlled region. It was submitted that reinstatement of a person convicted by a competent GSFC undermines discipline within the Force, erodes the integrity of the armed forces justice system, and adversely affects public confidence, thereby defeating the constitutional mandate under Article 33.
3.5. In view of the above submissions, learned counsel for the Union of India submitted that the present special appeal deserves to be allowed; the judgment dated 07.01.2014 passed by the Hon'ble Single Bench is liable to be set aside; and the conviction (Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (6 of 10) [SAW-598/2014] and sentence awarded by the GSFC, as confirmed by the competent authority, ought to be restored.
4. Per Contra, Mr. K.K. Shah, learned counsel appearing on behalf of the writ petitioner- respondent herein, while opposing the submissions made on behalf of the appellants, submitted that the Hon'ble Single Bench acted within the permissible scope of judicial review under Article 226, as intervention is justified where findings are perverse, unsupported by evidence, or rendered in violation of natural justice. It was submitted that the GSFC conviction suffered from fundamental procedural and evidentiary defects, warranting correction.
4.1. Learned counsel further submitted that the conviction was unsupported by any substantive evidence, as the respondent was not named in the FIR or Section 161 Cr.P.C. statements, was not identified in either test identification parade, and neither of the two prosecutrix deposed against him. It was submitted that medical and corroborative evidence did not support the allegation. It was submitted that the medical evidence was wholly inconsistent with the allegation of rape, and several prosecution witnesses originally arraigned as accused categorically exonerated the respondent. Thus, the finding of guilt was irrational, perverse, and entirely unsustainable.
4.2. Learned counsel also submitted that the Hon'ble Single Bench did not re-evaluate evidence but only examined whether any legal evidence existed to sustain the conviction. Since the (Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (7 of 10) [SAW-598/2014] finding of guilt was based on conjectures rather than proof, judicial review was rightly exercised.
4.3. Learned counsel further submitted that reinstatement and compensation were properly granted since the respondent suffered wrongful conviction, illegal termination, and five years of incarceration without any evidence. It was submitted that the Hon'ble Single Bench has already balanced equities by denying back wages and awarding only modest compensation. 4.4. Learned counsel also submitted that the plea of military discipline is a diversionary argument that cannot override constitutional due process. The discipline of the Force cannot rest upon sustaining an illegal conviction. It was submitted that public confidence is strengthened, not weakened, when the judiciary corrects wrongful punishment and protects individual liberty. The respondent cannot be sacrificed on the altar of institutional prestige.
4.5. In light of the above submissions, learned counsel submitted that the present special appeal filed by the Union of India is devoid of merit and is liable to be dismissed, and the well- reasoned judgment passed by the Hon'ble Single Bench deserves to be upheld in toto.
5. Heard learned counsel for the parties as well as perused the record of the case, and the cases cited at the Bar.
6. This Court observes that the scope of judicial review under Articles 225 and 226 of the Constitution in respect of Court-Martial /General Security Force Court (GSFC) proceedings is narrow and (Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (8 of 10) [SAW-598/2014] supervisory in nature. This Court does not sit in appeal over findings recorded by military courts, nor can it reassess or reweigh evidence or substitute its own factual conclusions. Interference under writ jurisdiction is justified only where proceedings suffer from jurisdictional infirmity, perversity, complete absence of evidence, violation of mandatory statutory procedure, or breach of principles of natural justice. The power of judicial review remains available despite the self-contained nature of military law, but must be exercised with restraint and only to prevent grave injustice.
7. This Court further observes that the legal position has been consistently clarified by the Hon'ble Supreme Court in Union of India v. Major A. Hussain, (1998) 1 SCC 357, wherein it was held that judicial interference is warranted only in exceptional circumstances where there is manifest illegality or violation of procedural safeguards, but not for re-appreciation of evidence. In Union of India v. Himmat Singh Chahar, (1999) 4 SCC 521, the Apex Court cautioned that writ jurisdiction cannot be converted into a second appeal, and interference merely because another view is possible on evidence is wholly impermissible. Likewise, in Union of India v. Budupalli Gopalaswami (2011 INSC 672, decided on 12.09.2011), it was reiterated that intervention is warranted only in rare cases involving perversity, mala fides, colourable exercise of power, breach of natural justice, or conclusions unsupported by any legal evidence. The Apex Court has thus carved out a clear exception permitting judicial review in cases of complete absence of evidence coupled with grave (Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (9 of 10) [SAW-598/2014] procedural illegality, recognising that failure to correct such injustice would amount to constitutional abdication.
8. Applying the above principles to the facts of the present case, this Court observes that the conviction of the respondent by the GSFC rests on total absence of legal and admissible evidence. The respondent was not named in the FIR, nor in any statement under Section 161 Cr.P.C.; he was not identified by either prosecutrix in two separate test identification parades; and when examined before the GSFC, both prosecutrix did not attribute any role, presence, or participation to him. There exists no medical or corroborative evidence supporting the charge. The only purported evidence emanated from witnesses who were themselves originally arraigned as accused, rendering their testimony inherently unreliable. The finding of guilt therefore does not suffer from insufficiency of evidence but from complete lack of evidence, amounting to manifest perversity.
9. This Court also observes that the GSFC proceedings are vitiated by serious procedural lapses, particularly non-compliance with mandatory Rule 57 and Rule 58 of the BSF Rules, 1969, governing alteration of charges and inclusion or exclusion of accused persons. Eleven accused persons originally implicated were dropped without any recorded explanation or reasoning, while the respondent, who never figured in the initial investigation material, was arraigned without any statutory basis or order invoking Section 319 Cr.P.C. or otherwise recording reasons for such selective prosecution. Such deviation constitutes a grave (Uploaded on 03/12/2025 at 03:34:58 PM) (Downloaded on 03/12/2025 at 08:59:30 PM) [2025:RJ-JD:50351-DB] (10 of 10) [SAW-598/2014] violation of natural justice and fundamental fairness, striking at the root of a lawful trial.
10. In view of the foregoing, this Court observes that the present case squarely falls within the narrow exception recognised in Major A. Hussain (supra), Himmat Singh Chahar (supra), and Budupalli Gopalaswami (supra), wherein judicial review is not only warranted but necessary to prevent miscarriage of justice. This is a rare case of conviction based on no evidence coupled with serious procedural illegality, fully attracting supervisory writ jurisdiction.
11. This Court finally observes that the learned Single Bench did not exceed the constitutional limits of judicial review under Article
226. The interference was confined to examining the legality of procedure and the existence of legal evidence, and did not entail re-assessment of factual material.
12. Accordingly, the Special Appeal (Writ) No. 598/2014 preferred by the appellant-Union of India stands dismissed. 12.1. All pending applications, if any, stand disposed of. (BIPIN GUPTA),J (DR.PUSHPENDRA SINGH BHATI),J 17-SKant/-
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