UNION OF INDIA & Ors. v. MUDRIKA SINGH

Judgment

1106 SUPREME COURT REPORTS [2021] 11 S.C.R. 1106 [2021] 11 S.C.R. A B C D E F G H UNION OF INDIA AND ORS. v. MUDRIKA SINGH (Civil Appeal No. 6859 of 2021) DECEMBER 03, 2021 [DR. DHANANJAYA Y CHANDRACHUD AND A.S. BOPANNA, JJ.] Border Security Force Act, 1968 – s.24(a) – BSF Rules 1969 – Unamended r.51 and amended r.51 (amendement in 2011) – Disgraceful conduct – Punishment under – The incident in question is alleged to have taken place on the night intervening 16 and 17 April 2006 – The complainant, a Constable in the BSF, was on Naka duty between 02:00 to 06:00 hours when the respondent-Head Constable is alleged to have committed an act of sexual assault on him – Record of Evidence (RoE) was submitted to the Commandant – The Commandant noted that there was an inconsistency in the statements of the witnesses as regards the date on which the incident had occurred – The Commandant called for the preparation of an additional RoE – Summary Security Force Court (SSFC) found respondent guilty and demoted him to the rank of a Constable as a punishment – The Appellate Authority-the Director-General of BSF commuted the sentence of reduction to the rank of Constable by substituting it with the following: (i) To forfeit 05 years services for the purpose of promotion; (ii) To forfeit 07 years past service for the purpose of pension; and (iii) To be severely reprimanded – A writ petition was filed by the respondent before the High Court, which was allowed and order of the punishment was set aside – Before the Supreme Court, two questions of law were raised: (i) whether the Commandant has the jurisdiction to direct preparation of an additional RoE; and (ii) whether the SSFC is under an obligation to record reasons under Rule 159 of the BSF Rules 1969 when it determines the guilt of an accused – Held: The unamended sub-rule (2) of Rule 51, as was applicable to the facts of the present case, cannot be construed to impose a prohibition on the Commandant to seek clarification, and for that purpose of ordering an additional RoE, to facilitate or aid the further processing of the case – Rule 51(2) does not contain any such prohibition – On the 1106 UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1107 contrary, sub-rule(1) to Rule 48 indicates that the officer ordering the RoE may either prepare an RoE himself or detail another officer to do so – Sub-rule(4) to Rule 48 empowers the officer to ask any question that may be necessary to clarify the evidence – If such a power is conferred upon the officer ordering the RoE while preparing the RoE himself, it would follow by necessary implication, that such a power is available to the Commandant even when the RoE is ordered to be prepared by another officer – The mere fact that a specific provision empowering the Commandant to call for further evidence was introduced in 2011 cannot result in the conclusion that absent such a power being expressly incorporated, the power did not vest in the Commandant – As far as obligation of SSFC to record reasons is concerned, Rule 149 does not either expressly or by necessary implication impose a mandate on the SSFC to record reasons when it renders its findings of guilt on a case referred to it – Thus, the punishment which was imposed on the respondent is in compliance with clauses (a) to (g) of s.48(1). BSF Rules 1969 – Unamended r.51 and amended r.51 (amendement in 2011) – Effect of amendment in r.51 – Clarificatory nature – The complainant, a Constable in the BSF, was on Naka duty between 02:00 to 06:00 hours on the night intervening 16 and 17 April 2006 when the respondent-Head Constable is alleged to have committed an act of sexual assault on him – Record of Evidence (RoE) was submitted to the Commandant – The Commandant noted that there was an inconsistency in the statements of the witnesses as regards the date on which the incident had occurred and ordered an additional RoE – Whether the commandant prior to the amendment of r.51 in 2011 had jurisdiction to direct preparation of an additional RoE – Held: When an amendment is purely clarificatory or declaratory in nature, it is deemed to operate retrospectively – The fact that the incident took place in the present case prior to the date of the amendment, i.e., 25.11.2011, would make no difference once the amendment, in the true sense of the expression, is construed to be clarificatory in nature – Against this backdrop, the Commandant was acting within his jurisdiction in ordering an additional RoE to clarify the date of the incident. Interpretation of Statutes – Amendment to a statute – Clarificatory nature – Held: An amendment to a statute or to statutory rules may often be clarificatory in nature – It is clarificatory in the A B C D E F G H 1108 SUPREME COURT REPORTS [2021] 11 S.C.R. sense that it expressly recognizes a power that already vests in the authority – In those circumstances, when an amendment is purely clarificatory or declaratory in nature, it is deemed to operate retrospectively. Service Law – Highlighting a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules – Discussed. Disposing of the appeal, the Court HELD: 1. Jurisdiction of the Commandant

1.1 The unamended sub-rule (2) of Rule 51 of BSF Rules 1969, as was applicable to the facts of the present case, cannot be construed to impose a prohibition on the Commandant to seek clarification, and for that purpose of ordering an additional RoE, to facilitate or aid the further processing of the case. Rule 51(2) does not contain any such prohibition. On the contrary, sub-rule(1) to Rule 48 indicates that the officer ordering the RoE may either prepare an RoE himself or detail another officer to do so. Sub- rule(4) to Rule 48 empowers the officer to ask any question that may be necessary to clarify the evidence. If such a power is conferred upon the officer ordering the RoE while preparing the RoE himself, it would follow by necessary implication, that such a power is available to the Commandant even when the RoE is ordered to be prepared by another officer. The purpose of seeking such a clarification is to facilitate the emergence of the truth as regards the genesis of an incident which is the subject matter of the enquiry. The mere fact that a specific provision empowering the Commandant to call for further evidence was introduced in 2011 cannot result in the conclusion that absent such a power being expressly incorporated, the power did not vest in the Commandant. [Para 20][1122-G-H; 1123-A-C]

1.2 An amendment to a statute or to statutory rules may often be clarificatory in nature. It is clarificatory in the sense that it expressly recognizes a power that already vests in the authority. In those circumstances, when an amendment is purely clarificatory or declaratory in nature, it is deemed to operate retrospectively. [Para 21][1123-C-D] A B C D E F G H UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1109

1.3 This Court has often recognized amendments to service rules as clarificatory in nature, thereby having a retrospective operation. In our view, the power to order additional RoE is incidental to realize the purpose of Rules 48 and 51. In any event, residual powers under Rule 6 would protect this action. Since the express power to direct additional RoE under Rule 51 was incidental to the exercise of the existing powers, the amendment to Rule 51 which was brought in 2011 must be construed to be clarificatory. In fact, the High Court proceeded on this line of analysis by observing that the amendment is clarificatory. However, it chose to not take it to its logical conclusion on the tenuous ground that no submission had been put forth by either side to throw light on the relevant provision. [Para 22] [1125-B-D]

1.4 The fact that the incident took place in the present case prior to the date of the amendment, i.e., 25 November 2011, would make no difference once the amendment, in the true sense of the expression, is construed to be clarificatory in nature. Against this backdrop, the Commandant was acting within his jurisdiction in ordering an additional RoE to clarify the date of the incident. As this is not a case of insufficient evidence. During the course of the RoE, the respondent himself stood by the complainant‘s version of the date and time on which the alleged incident took place, which was the night when the respondent was detailed to Naka duty as Head Constable. The only issue for which additional RoE was warranted was in regard to the confusion in regard to the precise date on which the incident took place, considering the confusion caused by the incident having occurred on the intervening night of 16 and 17 April 2006. Save and except for this, the RoE which was prepared initially was comprehensive in nature and contained all necessary details of the incident, which were sufficient to sustain the final conclusion. [Para 23][1125-D-G]

2. Recording of reasons

2.1 The decision in Dinesh Kumar which is based upon the view of the Constitution Bench in S N Mukherjee and Som Datt Dutta provides a clear answer and negates the finding of the High Court on the mandate of recording reasons by the SSFC when A B C D E F G H 1110 SUPREME COURT REPORTS [2021] 11 S.C.R. A B C D E F delivering its finding under Rule 149. Rule 149 does not either expressly or by necessary implication impose a mandate on the SSFC to record reasons when it renders its findings of guilt on a case referred to it. [Para 29][1134-E-G] S N Mukherjee v. Union of India (1990) 4 SCC 594 : [1990] 1 Suppl. SCR 44 – followed. Shyam Sunder v. Ram Kumar (2001) 8 SCC 24:[2001] 1 Suppl. SCR 115; Zile Singh v. State of Haryana (2004) 8 SCC 1: [2004] 5 Suppl. SCR 272; Union of India v. Dinesh Kumar (2010) 3 SCC 161: [2010] 2 SCR 830; Som Datt Datta v. Union of India AIR 1969 SC 414 : [1969] SCR 177 – relied on.