Balwinder Singh v. UNION OF INDIA & ORS.

By way of the present writ petition, the petitioner has assailed the findings and sentence dated 14th October, 1997 of the Summary Security Force Court (`SSFC' hereafter) as well as the order dated 26th September, 2007 passed by the Director General of the Border Security Force, respondent no.2 herein, upholding the same.

The petitioner was enrolled as a constable with the Border Security Force Court on or about 26th/27th December, 1988. In the year 1996, the petitioner was posted at the Station Headquarters, BSF Siliguri and was attached to the 137th Battalion of the BSF. While so serving with the 137th Battalion, the petitioner was served with a WP (C) No.7875/2007 Page No.1 of 47 charge sheet dated 12th April, 1996 issued by the commandant of the battalion under Rule 53(2) of the Border Security Force Act, 1969 (BSF Act, 1969 hereafter) making the following allegations against the petitioner:-

Charge No.1 BSF ACT SECTION-40 AN ACT PREJUDICIAL TO GOOD ORDERS AND DISCIPLINE OF THE FORCE (At about 1630 hrs on 08.04.1996 at B.S. Bari BOP picked up quarrel with Bus Driver, Conductor and passengers of NBSTC Bus No. WST-2384.) Charge No.2 BSF ACT SECTION-26 INTOXICATION ( At about 1630 hrs. on 08.04.1996 was found in a state of intoxication at BS Bari BOP)

The commandant directed trial of the petitioner on these charges by a Summary Security Force Court (`SSFC' hereafter). The petitioner was found guilty in these proceedings and was dismissed from service by an order passed on 1st June, 1996.

The petitioner was thereafter served with a communication dated 27th August, 1996 from the Headquarters, 137th Battalion, BSF informing him that the Inspector General, BSF, North Bengal had set aside the trial proceedings on the ground of illegality. As a result, by an order dated 11th October, 1996, the respondents reinstated the petitioner into service w.e.f. 8th September, 1996 and adjusted him against an existing vacancy of constable in the 34th Battalion BSF. The period of the petitioner's absence w.e.f. 1st June, 1996 to 7th September, 1996 was regularised by granting 99 days earned leave.

A fresh offence report was prepared against the petitioner as per Rule 44 of the BSF Rules. The petitioner was allegedly heard by the Commandant of the 34th Battalion on 26th May, 1997 in WP (C) No.7875/2007 Page No.2 of 47 compliance with Rule 45 of the BSF Rules. The petitioner was now served with an order dated 26th May, 1997 issued by the officiating commandant of this battalion, informing him that he was charged under Sections 40 & 26 of the BSF Act, 1968 and that Shri P.S. Bhatti would prepare the record of evidence against him in compliance with Rule 48 of the BSF Rules.

The record of evidence was prepared by this officer and placed before the commandant of the 34th Battalion. The record of evidence was considered by the commandant and an order dated 2nd October, 1997 was passed by him. It was thereby directed that the petitioner would be tried by an SSFC on 4th October, 1997, tentatively for offences committed on 8th April, 1996 under Sections 40 & 26 of the BSF Act, 1968. The petitioner was directed to intimate the names of persons from whom he wanted one to be appointed as a friend of the accused. Additionally, a copy of the chargesheet and the record of evidence was enclosed.

The chargesheet dated 27th September, 1997 would show that it was identical to the charge sheet of 12th April, 1996 served on the petitioner for which the petitioner had been tried earlier. The only difference between the two was in the battalion of the issuing authority.

The petitioner was kept in close arrest between 3rd October, 1997 when the SSFC began its proceedings till 17th October, 1997 when the findings of guilt on both the charges against him was returned. On the same date, the petitioner was sentenced to dismissal from service by the SSFC.

The petitioner assailed the findings and sentence of the SSFC WP (C) No.7875/2007 Page No.3 of 47 by way of writ petition being WP (C) No.130/2002 before the High Court of Punjab & Haryana. The respondents had, inter alia, objected to the maintainability of the writ petition on grounds of territorial jurisdiction. In view thereof, in the hearing on 16th January, 2007, counsel for the petitioner sought leave to withdraw the petition with liberty to file the same before this court. The petitioner was so permitted.

In this background, the petitioner earlier approached this court on 24th February, 2007 by way of the WP (C) No.1754/2007. On 1st May, 2007, this writ petition was permitted to be withdrawn giving leave to the petitioner to approach the competent authority by way of a petition under Section 117 of the BSF Act, 1968. The petitioner consequently filed a petition dated 18th July, 2007 before the Director General of the BSF under Section 117 of the BSF Act, 1968. This petition has been rejected by the Director General by an order passed on 26th September, 2007. Aggrieved thereby, the petitioner has assailed the findings and sentence dated 14th October, 1997 of the Summary Security Force Court as well as the order dated 26th September, 2007 by way of the present writ petition.

The petitioner, inter alia, challenges not only the said orders but also the very initiation of the proceedings on the ground that the petitioner could not have been prosecuted and punished more than once for the same offence; that the action of the respondents tantamounts to double jeopardy and infringes the protection conferred upon the petitioner under Article 20 (2) of the Constitution of India. In this regard, the petitioner also places reliance on the provisions of Section 75 (1) of the BSF which prohibits a second trial WP (C) No.7875/2007 Page No.4 of 47 of the petitioner on same charges.

The primary ground of challenge is laid on the submission that the petitioner has been denied a reasonable facility to make his defence by not providing a proper friend of the accused who is statutorily mandated under rule 157 to assist the petitioner in preparing his defence to the charges and allegations levelled against him.

The petitioner has also contended that the findings of the SSFC are based on no evidence at all and that there is no material to sustain the charges levelled against the petitioner and the findings of guilt. The petitioner has also made a grievance that he was never medically examined in support of the allegation that he was intoxicated and therefore any oral evidence to this effect has to be summarily rejected.

It is vehemently contended that Rule 148 of the BSF Rules mandates that after the evidence for the prosecution and defence has been heard by the Security Force Court, it shall give its opinion as to whether the accused is guilty or not guilty of the charge or charges and consequently the SSFC had to record reasons in support of its findings. In the instant case, the court has recorded no reasons at all in support of the findings of guilt of the petitioner on the first and second charge. In this behalf Mr. Amit Kumar, learned counsel places reliance on the pronouncement of this court in 102 (2003) DLT 415 (DB) Nirmal Lakra & Anr. Vs. Union of India and the judgment dated 21 st November, 2008 passed in LPA No.409/2004 Raj Kumar Vs. Union of India (Paras 14 & 15). It is contended that findings and sentence imposed on the petitioner is violative of the specific WP (C) No.7875/2007 Page No.5 of 47 provisions in the rules and is legally not sustainable.

The further submission is that the appellate authority by furnishing reasons cannot rectify the core defect in the order of the disciplinary authority which has to be tested on reasons which it alone discloses. Any reasons by the appellate authority would be of no consequence. In this regard, reliance has been placed on the authoritative pronouncement of the Apex Court reported at (1978) 1 SCC 405 Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner New Delhi & Ors.

An additional ground to assail the proceedings of the SSFC urged on behalf of the petitioner is a challenge to the same based on violation of Rule 109 which casts a duty on the court as well as prosecutor to ensure that the rights of the accused are adequately protected. Sub rule (3) of Rule 109 requires that the court shall give reasonable facility to the accused in making his defence which, it is contended, the petitioner has been denied.

It has also been objected by the petitioner that Rule 134 of the BSF Rules was also violated for the reason that the evidence was not recorded in a language which the petitioner understood. A grievance is made that the petitioner was a lay person and was illiterate without having any knowledge of the English language who was not given any assistance by the friend appointed by the respondent.

Learned counsel for the petitioner has also assailed the findings and sentence of the SSFC on the ground that the same are based on no evidence at all. It is urged that identical statements of official witnesses have been recorded which suggests that they are tutored and that the evidence of only one civilian witness was recorded and WP (C) No.7875/2007 Page No.6 of 47 even he contradicted himself in the cross-examination.

Ms. Barkha Babbar, learned counsel appearing for the respondents has explained that on the date of the incident on 8th April, 1996 the petitioner was attached with the 137th Battalion BSF for Border Patrol (Motor Cycle-driver). The first record of evidence was prepared against the petitioner as charged under Sections 40 and 26 of the BSF Act, 1968 by orders of the Commandant, 137th Battalion, BSF who also tried the petitioner on 1st June, 1996 as a Summary Security Force Court for committing the said offences and found him guilty and imposed the sentence of dismissal.

It has been contended that under Rule 16 of the BSF Rules, 1968, disciplinary powers in respect of a person are vested in the commandant of the battalion where such person is posted. The petitioner had been only attached for certain duties with the 137th Battalion and as such, had been wrongly tried by the commandant of this battalion. The proceedings of the court were consequently found to be suffering from illegality by the DIG BSF, Siliguri, who passed the order dated 11th October, 1996 setting aside the SSFC.

In this regard Ms. Barkha Babbar, learned counsel for the respondent contends that the petitioner was not acquitted after a trial by the first Summary Security Force Court or by any criminal court. It is further explained that the petitioner had not been dealt with under Section 53 or Section 55 of the BSF Act but the proceedings against him were merely set aside on technical grounds. The submission is that for this reason, the fresh trial of the petitioner by the commandant of the 34 battalion where he was posted, was legally permissible. Ms. Babbar contends that the plea of the same being WP (C) No.7875/2007 Page No.7 of 47 prohibited under Section 75 of the BSF Act, 1968 or being violative of Article 20(2) of the Constitution was misconceived and untenable.

Learned counsel for the respondents has submitted that Rule 6 of the Border Security Force Rules provides a residuary power so far as the matters not specifically provided in the rules are concerned. It has been contended that by virtue of rule 6 of the BSF Rules, it is lawful for the competent authority to do such thing or take such action as may be just and proper in the facts and circumstances of the case with regard to any matter not specifically provided for. The submission is, therefore, that the de novo trial to the petitioner was legally permissible.

We may at the outset consider the objection to the legality of the de novo trial of the petitioner on the ground that the same was prohibited by virtue of Section 75 of the BSF Act. Section 75 of the BSF Act prohibits a second trial of a person who has been acquitted or convicted of any offence by a security court or by a criminal court or has been dealt with under Section 53 or Section 55 for the same offence by a security force court or dealt with under the said sections. Section 75 reads as follows:- Section 75 - Prohibition of second trial (1) When any person subject to this Act has been acquitted or convicted of an offence by a Security Force Court or by a criminal court or has been dealt with under section 53 or under section 55, he shall not be liable to be tried again for the same offence by a Security Force Court or dealt with under the said sections. (2) When any person, subject to this Act, has been acquitted or convicted of any offence by a Security Force Court or has been dealt with under section 53 or section 55, he shall not be liable to be tried again by a criminal court for the same offence or on WP (C) No.7875/2007 Page No.8 of 47 the same facts.

Mr. Amit Kumar, learned counsel for the petitioner has placed reliance on the pronouncement of this court reported at 134 (2006) DLT 353 (DB) Banwari Lal Yadav Vs. Union of India & Ors. in support of this submission.

In the instant case, the petitioner was convicted by the first SSFC by an order dated 1st June, 1996 for commission of offences under Sections 26 & 40 and punishment of dismissal from service was imposed on him. Subsequently, by an order dated 27th August, 1996, the petitioner was informed about the orders passed by the Inspector General, BSF, North Bengal setting aside the first trial on ground of illegality and the petitioner was directed to rejoin duties immediately.

This court had occasion to deal with a similar issue in the judgment reported at Banwari Lal Yadav Vs. Union of India & Ors. (supra) wherein, upon a careful consideration of the statutory provisions as well as several pronouncements of the Supreme Court, it was concluded that a distinction was required to be drawn with regard to the reasons for which the first trial proceedings were marred. On the question which has been raised before this court, the court held as follows:- “10. The mainstay of the petitioner's case is that the SSFC trial proceedings having been set aside and he having been reinstated in the service, it was not open to the respondents to order a fresh trial against him for the same offence.

13. In our considered view, there is a clear distinction, albeit a fine one, between cases where a court has no jurisdiction to try the offence, as for example, if the court WP (C) No.7875/2007 Page No.9 of 47 is not competent to try the offence for want of sanction for prosecuting the accused or if the composition of the court is not proper as required for that type of court or if the court is illegally constituted of unqualified officers, and cases where the trial ipso facto is unsatisfactory as for example if during the course of the trial, inadmissible evidence is admitted or admissible evidence is shut out or proper procedure is not followed and the trial is consequently marred by grave irregularities which operate to the prejudice of the accused. In the former category of cases the trial would be non est, being null and void from its very inception. In other words, there would be no trial in the eyes of law. In the latter category of cases, however, in our view, it would be deemed that the accused has withstood the trial and as such he cannot be tried again.

22. The object and intent of Section 75 which has been incorporated in the BSF Act is clearly to prohibit a second trial of the accused, whether by the Security Force Court or by a criminal court, in all cases where the accused has been convicted or acquitted of an offence by a Security Force Court or by a criminal court or has been dealt with under Section 53 or Section 55. Section consequently imposes a bar on second trial where the first trial was by a court of competent jurisdiction, though not where the first trial was void ab initio. 75

23. We are fortified in coming to above conclusion from Section 161 of the BSF Act which provides as under:

Action by the Deputy Inspector General- (1) Where the Deputy Inspector General to whom the proceedings of a Summary Security Force Court have been forwarded under Rule 160, is satisfied that injustice has been done to the accused by reason of any grave irregularity in the proceedings or otherwise, he may, (a) set aside the proceedings of the court; or (b) reduce the sentence or commute the punishment awarded to one lower in the scale of punishment given in Section 48 and return it to the unit of the accused for promulgation.

24. A bare glance at the provisions of the aforesaid section shows that what is envisaged is the setting aside of proceedings by the Deputy Inspector General where grave irregularity has been committed by a Summary Security Force Court, thereby causing injustice to the WP (C) No.7875/2007 Page No.10 of 47 accused. The provisions of the said section do not envisage the setting aside of the proceedings in a case where the court had no jurisdiction in the first place to deal with the matter, as for example where the court was illegally constituted or incompetent to deal with the matter on account of want of sanction by the competent authority or otherwise. The trial initiated by such a court against the accused would be non est in the eyes of law, and quite obviously cannot stand in the way of initiation of de-novo trial.” (Emphasis supplied)

In the instant case, it has been explained that the proceedings before the initial SSFC were illegal on the ground that they were contrary to the provisions of Rule 16(3) of the BSF Rules. The same was set aside not on any such ground that the trial was unsatisfactorily conducted but for reasons of lack of inherent jurisdiction in the court. In view thereof, the prohibition under Section 75 was clearly neither attracted nor applicable and the objection on behalf of the petitioner to the effect that de novo trial of the petitioner by the SSFC was barred as misconceived and is hereby rejected.

So far as his trial by the Summary Security Force Court is concerned, the primary grievance of the petitioner is that Rule 157 of the BSF Rules, 1969 entitled the petitioner to take the assistance of any person including a legal practitioner as he may consider necessary. Instead of permitting the petitioner to take the assistance of a legal practitioner, or any other competent person, the respondents thrust the services of Shri P.S. Bhatti upon the petitioner. The petitioner contends that Shri Bhatti could not have been appointed as the friend of the accused in the SSFC for the reason that he had prepared the record of evidence and nurtured a bias against the petitioner. A challenge has been laid to the proceedings of the SSFC on the ground that the petitioner has thereby been denied a WP (C) No.7875/2007 Page No.11 of 47 reasonable opportunity to defend himself and the trial would stand vitiated on this ground alone. The petitioner has vehemently complained that Rule 157 of the BSF Rules has, therefore, been violated vitiating the proceedings and rendering the orders and sentence of the SSFC and the orders dated 26th September, 2007 of the respondent no.2 illegal.

Before examining the challenge to the findings and sentence of the SSFC on the grounds urged, it is essential to examine the nature of the rights of a person as the petitioner who is arraigned before the SSFC.

Article 21 of the Constitution of India mandates that no one shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The order of dismissal from service impugned by way of the present writ petition impact the petitioner's employment and his source of livelihood. The Supreme Court has held in a catena of cases that the term “life” used under Article 21 of the Constitution of India includes the right to livelihood and so many other facets of life. Reference in this behalf can be made to the pronouncement of the Supreme Court reported at AIR 1986 SC 180 Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. The Supreme Court observed as follows:-

32. xxx An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and WP (C) No.7875/2007 Page No.12 of 47 meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be In accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.

It is trite therefore that the right to livelihood which is an essential and integral part of the right to life constitutionally guaranteed under Article 21 cannot be taken away other than by a procedure established by law.

On the issue as to whether members of the armed forces can absolutely exercise and enforce their fundamental rights against the state, the Constitution Bench of the Supreme Court in MANU/SC/0047/1963 : AIR 1965 SC 247 : (1964) 5 SCR 931 Ram Sarup vs. UOI & Anr. held that Article 33 of the Constitution of India expressly empowers the Parliament to determine by law the extent to which any of the rights conferred by Part III of the Constitution, in their application, inter alia, to the members of the armed forces, shall be restricted or abrogated to ensure the proper discharge of their duties and the maintenance of discipline among them. The Parliament can therefore, in exercise of powers conferred by Article 33 of the Constitution of India restrict or abrogate the fundamental rights guaranteed under Part III of the Constitution in their application to the members of the armed forces. Such restriction or abrogation is dependent on specific parliamentary legislation and only law passed by resort to Article 33 can overshadow the rights guaranteed by Articles 21 and 22 of the Constitution of India. WP (C) No.7875/2007 Page No.13 of 47

Placing reliance on these principles laid down by the Constitution Bench, in the subsequent pronouncement reported at