Tarun Rana, Mr. Rakesh Kumar Singh, Mrs. Reena Gupta and Mr. Sahir Gahlot, Advs v. UNION OF INDIA ORS

Judgment

1. The petitioner has filed the present petition assailing his dismissal from service and conviction under Section 376 and Section 468 of the Indian Penal Code, 18601 by the General Security Force Court2 constituted under the Border Security Force Act, 19673, wherein initially he was sentenced to undergo rigorous imprisonment for a period of two years. However, subsequently on revision by the 1 “IPC”, hereinafter 2 “GSFC”, hereinafter 3 “BSF Act”, hereinafter Signature Not Verified Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 GSFC, the sentence was enhanced to rigorous imprisonment for a period of 10 years.

2. Shorn off unnecessary details, the facts as noted from the petition would be that the petitioner, an Ex Constable (GD) bearing No. 021215166 was enrolled in the Border Security Force4 on 1st June, 2002 as Constable (GD) and after completion of his basic training (BRT) from BTC and BSF Hazaribagh, he joined 162 Battalion, BSF since 27th August, 2003, which had its headquarters at Thrissur, Kerala.

3. As per the substratum of the matter, while the petitioner was deployed under the Frontier Headquarter, BSF, Odisha, a complaint came to be filed by one *****, Mahila Constable 184 Battalion, BSF, (attached with SHQ, BSF, Trivandrum)5. The contents of the complaint alleged that on 26th November 2019, the petitioner, who at that point of time was deployed for campus security duty at SHQ BSF Trivandrum, had established physical relationship with complainant by giving her false promises of marriage, while she was working as an Assistant in Establishment Branch of SHQ BSF Trivandrum.

4. As per the complaint, the petitioner, although married, provided a fabricated death certificate of his wife namely Smt. Nisha Verma to the complainant in furtherance of the said relationship. It is alleged that both of them spent a night together in a hotel at Kovalam (Kerala) and engaged in consensual sexual activities on 27th November, 2019 Signature Not Verified 4 “BSF”, hereinafter 5 “Complainant”, hereinafter Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 and 12th October, 2019. Further, allegations of harassment, blackmail and threats of morphing of pictures were also made in the said complaint against the petitioner.

5. Although, the aforesaid complaint was initially inquired into by the Sexual Harassment Inquiry Committee of Sector HQ, BSF, Trivandrum, however, the Committee after conducting inquiry found that the incident did not constitute to be a case of sexual harassment of a woman at workplace and rather was a case of cheating on false promise of marriage as well as of cybercrime. Accordingly, the Committee recommended that the case either be transferred to a Cyber Cell to ascertain facts and suggest disciplinary actions against the petitioner or be transferred to the administrative authority which may take appropriate actions as it deemed fit. Apparently, the said inquiry proceedings were finalized with the remarks of the Inspector General, Odisha Frontier, BSF on 6th May, 2020 and as per his final remarks, the petitioner was found to have been indulged in cheating, forgery and extra-marital affair with a woman employee of the force, which tantamounts to an offence for which he was liable for disciplinary actions under the BSF Act and Rules.

6. Thus, the complaint came to be inquired into by a Court of Inquiry6 constituted by the Commandant of 162 BN BSF vide an order dated 25th August, 2020 and on the basis of the opinion of the COI dated 8th October, 2020, disciplinary action was initiated against the petitioner under Section 45 of the Border Security Force Rules, 19697. Subsequently, the Commandant vide an order dated 11th December Signature Not Verified 6 “COI”, hereinafter 7 “BSF Rules”, hereinafter Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 2020, remanded the petitioner for preparation of Record of Evidence8, in accordance with the Rule 48 of the BSF Rules and charges under Sections 376, 463 and 468 of the IPC. Apparently, on advice of the Law Branch, Frontier Headquarter HQ (Spl Ops), BSF, Bangalore an Additional ROE was also prepared and after due consideration of the case, an application under Rule 52 of the BSF Rules was submitted to Frontier Headquarter (Special Ops), Odisha through SHQ BSF, Trivandrum to convene Security Force for the trial of the petitioner.

7. Records reveal that the ROE was followed by convening order dated 1st June, 2022, for holding GSFC against the petitioner with effect from 9th June, 2022 on the following two charges:

First Charge BSF Act-1968 Section-46 Second Charge BSF Act, 1968 Section- 46 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY RAPE PUNISHABLE U/S 376 OF IPC In that he, at Kovalam on 27.09.2019 and 13.10.2019, had sexual intercourse with ***** CT (Mahila) of 184 Bn BSF, attached with SHQ BSF Trivandrum by giving false promise to marry her. COMMITTING A CIVIL OFFENCE THAT IS TO SAY FORGERY FOR PURPOSE OF CHEATING PUNISHABLE U/S 468 OF IPC. In that he, at SHQ BSF Trivandrum during the month of Sept/Oct 2019, made himself a false/forged Death Certificate of his wife, namely Smt. Nisha Verma with intend to cheat ***** CT (Mahila) of 184 Bn BSF (attached with SHQ BSF Trivandrum) by showing himself as a widower.

8. The petitioner was tried on both the aforesaid charges and in the said GSFC trial, on being arraigned by the charges, the petitioner Signature Not Verified 8 “ROE”, hereinafter Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 pleaded „Not Guilty‟ to the charges. Thus, in order to prove their case, the prosecution examined 11 witnesses and after a perusal of the evidence on record, the GSFC found the petitioner guilty of both the charges and as such convicted him under Section 376 and Section 468 of the IPC, and as such vide an order dated 29th June, 2022, the petitioner was dismissed from service and sentenced to two years‟ rigorous imprisonment under Section 46 of BSF Act.

9. In the intervening period, a writ petition being W.P.(C) 13066/2021 came the petitioner, which was subsequently withdrawn vide an order dated 6th July, 2022, with to be filed by liberty to avail remedies as available to him as per law, thereinafter the petitioner preferred a representation before the IG, BSF, FHQ Frontier Headquarter Bangalore. Subsequently, the petitioner preferred a pre- confirmation petition under Rule 142 of the BSF Rules dated 20th August, 2022, challenging the findings of the GSFC.

10. The petitioner, again preferred a second writ petition being W.P.(C) 13342/2022 for time bound adjudication of the aforesaid statutory petition, wherein vide an order dated 14th September 2022, this Court directed the respondents to decide the statutory petition within a period of six weeks. Thereafter, the GSFC revised its sentence in accordance with the directions of the confirming authority, and by order dated 28th November, 2022, sentence which was imposed of the petitioner for two years was enhanced to ten years‟ rigorous imprisonment.

11. The petitioner preferred another petition dated 28th December Signature Not Verified 2022 under Section 117(1) of the BSF Act r/w Rule 167 of the BSF Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 Rules against the aforesaid order of the GSFC passed in revision trial and subsequently, also filed a 3rd Writ Petition being W.P.(C) 497/2023 for time bound adjudication of the aforesaid statutory petition, wherein vide an order dated 17th January, 2023, this Court directed the respondents to decide the statutory petition within a period of six weeks.

12. In the meantime, the pre-confirmation petition came to be dismissed by the confirming authority on 17th February 2023, wherein the findings and sentence were confirmed by the competent authority by giving an observation that the findings of the GSFC are based upon evidence on record and the sentence awarded legal and commensurate with gravity of offence. Accordingly, the petitioner preferred a post-confirmation statutory petition dated 7th March, 2023 under Section 117(2) of the BSF Act read with Rule 167 of the BSF Rules.

13. The petitioner also preferred a petition dated 7th March, 2023 under Section 130 of the BSF Act for suspension of sentence. However, during the pendency of the aforesaid petitions, the Petitioner again preferred a writ petition being W.P.(C) 3786/2023 for time bound adjudication of the aforesaid statutory petition, wherein vide an order dated 24th March, 2023, this Court directed the Respondents to decide the statutory petition within a period of four weeks.

14. In view of the directions of this Court, the Director General9, BSF, vide an order dated 12th April, 2023, rejected the aforesaid statutory decision being devoid of merits. Signature Not Verified 9 “DG”, hereinafter Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023

15. Thus, dissatisfied by the order passed by the DG and the other orders as enumerated herein below, the petitioner has filed the present writ petition under Article 226 of the Constitution of India, challenging and seeking setting aside of the following orders: Issue a writ of Certiorari or any other appropriate writ, “(i) order or direction thereby calling for records and quash the impugned order dated 29.06.2022 (Annexure-P-1), order dated 28.11.2020 (Annexure-P2), order dated 17.02.2023 (Annexure-P3), order dated 20.02.2023 (Annexure-P4), order dated 12.04.2023 (Annexure-P5) passed by the DG BSF. (ii) Issue a writ of Certiorari or any other appropriate writ, order or direction thereby directing the respondent DG BSF to reinstate the petitioner in service with all the consequential benefits. (iii) interest of justice.” Pass any other order this Hon'ble Court deems fit in the

16. Mr. Tarun Rana, learned Counsel appearing for the petitioner argued that the complainant shared cordial relations with the petitioner and there was no occasion for any allegation to be leveled against the petitioner. According to him, the first complaint dated 26th November, 2019 lodged by the complainant does not mention allegations of rape or physical relationship.

17. The learned Counsel has strenuously argued that it was because of the nature of the offences mentioned in the complaint, the proceedings were initially conducted before the Women Harassment Committee of BSF. He drew this Court‟s attention to the statements recorded during the said proceedings, wherein according to him, the complainant stated that she had engaged in sexual relations with the petitioner only once and that it was consensual and that she was not Signature Not Verified Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 pressurized by the petitioner for any sexual favours by taking advantage of his posting and presence in the Establishment Branch.

18. The learned Counsel has strongly relied on the recommendation of the Committee, which has held that incident was not a case of sexual harassment but a case of cheating on false promise to marry and cyber crime, for which he says that there was no proof nor any witnesses, except the CD of recorded conversation. According to the learned Counsel, at best the case ought to have been referred to the Cyber Crime, but the respondents wrongly initiated the COI. Even in the said COI, a fresh inquiry was made into complaint dated 26th November, 2019, without considering the recommendation and proceedings of the Women Harassment Committee.

19. The learned Counsel has referred to the various questions and answers recorded during the COI to argue that most of the answers support the innocence of the petitioner. He has also submitted that, although there were certain improvement in the statements, inasmuch as she initially stated before the Committee that she had physical relations with the petitioner only once, but later she claimed that it occurred twice, the second being at a hotel in Kovalam, these inconsistencies, however, by and large extent strengthen petitioner‟s case.

20. According to the learned Counsel, the findings recorded by the COI, invariably states that the actions of the petitioner to be an act of cheating and having illicit relationship with another woman, amounting to adultery. He states that while the act could be immoral, Signature Not Verified but could not be rape as during inquiry, COI has found even the Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 complainant to be blameworthy and recommended disciplinary actions against the petitioner as well as the complainant.

21. It has been further submitted by the learned Counsel of the petitioner that even in the GSFC proceedings, when the complainant was examined as PW-2, she admitted that although the death certificate had been provided to her by the petitioner, but the same was not filed by her along with the complaint dated 26th November, 2019. Thus, according to the learned Counsel, the veracity of the death certificate could not be proved as the source from where the printout had been taken has not been proved.

22. He submits that there had been material contradictions in the statements of the complainant at various stages during the proceedings and according to him, the statements do not inspire any confidence. Further, he has sought to challenge the veracity of the complaint as allegedly the same had been drafted by some Counsel. According to him, the offence of rape has not been proved and at best the incidence was of a consensual physical relationship between two adults. He has vehemently contested the enhancement of corporal punishment from the initial two years to ten years in revision and has stated that it was done in a mechanical and arbitrary manner.

23. Per contra, Ms. Pratima N. Lakra, learned CGSC appearing for the respondents, submits that the issue is no longer res gestae that this Court exercising its jurisdiction under Article 226 of the Constitution, has extremely limited power of judicial review in GSFC proceedings. She points out that there are only three broad principles under which these orders passed by the GSFC can be interfered with, which are: Signature Not Verified Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 Patent violation of natural justice (i) (ii) Lack of jurisdiction (iii) Manifest perversity and as such relies on the following judgments: i. Ram Kishan v Govt. of NCT of Delhi10, ii. Indian Oil Corporation v Ajit Kumar Singh11, iii. Sumit Sangwan v Union of India12.

24. The learned CGSC has buttressed her submissions on the premises that GSFC trial was conducted strictly in accordance with the BSF Act and Rules, wherein 11 witnesses were examined and almost 37 documents have been exhibited. According to her, the petitioner was awarded full opportunity of defending himself and no violation of natural justice or legal procedure has been demonstrated.

25. She further contends that the GSFC has meticulously analyzed the oral and documentary evidence, and the findings arrived are detailed, well-reasoned and based on corroborated facts and as such the impugned order does not call for any interference by this Court. In her submission, there was no procedural irregularity or arbitrariness and, in any case, this court may not override or dilute a conviction rendered by a competent authority/GSFC after full trial.

26. Ms. Lakra has controverted the grounds of the petitioner, by submitting that the statement of the complainant has been narrated and mentioned out of context. According to her, the purported consent that 10 W.P.(C) 6822/2011 11 Civil Appeal No. 3663/2023 12 W.P.(C) 13248/2022 Signature Not Verified Signed By:GUNN Signing Date:07.08.2025 15:56:42 W.P.(C) 6319/2023 is being claimed by the petitioner for having a physical relationship is invalid in law inasmuch as the same was obtained by deceit and fraud, wherein admittedly the petitioner misrepresented his marital status by forging the death certificate of his living wife.

27. The learned CGSC has submitted that any inducement with false promise of marriages vitiates the consent under Section 90 of the Indian Evidence Act, 1872 and falls squarely within Explanation (ii) of Section 375 of the IPC. Reliance is placed on the judgment of the Supreme Court in Pramod Suryabhan Pawar v The State of Maharashtra13.

28. The learned CGSC has sought to controvert the ground of material contradictions in the statement of complainant by relying on the judgment of the Supreme Court in Subodh Nath & Anr. v State of Tripura14, to buttress her submissions that evidence cannot be discarded only on the ground of some discrepancy in the evidence of the witnesses as this can be due to various reasons including normal errors of observation, loss of memory, mental deposition and the like.

29. She relied on the admitted relationship between the complainant and the petitioner and corroboration of the hotel records with the CDR details of the mobile numbers to highlight that the GSFC‟s findings of the guilt of the petitioner is based on cogent evidence, corroborated documentary records and admissions of the petitioner.

30. Thus, according to her, the omnibus plea of consensual Signature Not Verified