The punishment of dismissal imposed upon the original petitioner was set aside and a direction was issued that the original petitioner would be entitled to full consequential benefits except salary to the extent of 50%. (Para 1)
The original petitioner/accused (the respondent herein) was a Constable (General Duty) in the Border Security Force (in short “BSF”). The case against him was that while he was posted as a security aide to a lady doctor, on 17.06.2005, at about 7.45 pm, he clicked pictures of that lady doctor while she was taking her bath. (Para 2)
The Commandant remanded the original petitioner for trial by a Summary Security Force Court (in short, “SSFC”). The SSFC held its proceedings on 23rd July, 2005 wherein the original petitioner is stated to have pleaded guilty. Based on that, the SSFC dismissed the original petitioner from service. (Para 2)
In the alternative, the original petitioner pleaded that he was a young man, aged 31 years, who had diligently discharged his duties for over 11 years without a complaint, therefore, even if the original petitioner is found guilty, a lenient view be taken by taking into account that he has old parents and a family dependent on him. (Para 3)
Before the High Court, the orders impugned in the writ petition were questioned on two grounds: (a) that there were procedural infirmities in conducting the proceedings and recording of evidence; and (b) that the evidence recorded did not inculpate him. (Para 6)
High Court in paragraph 23 of its judgment observed:
“23. A close analysis of the evidence would highlight the following circumstances:
(1) PW-1 noticed two camera flashes, whilst she was bathing, around 7-45 PM on 17th June, 2005, after she asked the petitioner to leave the premises. Despite her alert, no one was caught. PW-2 corroborated this. PW-3 who reached the spot, also could not see anyone.
(2) The petitioner was asked to report back immediately; he did so. During the intervening period, he went to Const. Kunnu’s house, and borrowed boots. This was verified from the latter’s wife and sister-in-law (PW 9) the same day. PW-9 did not mention anything about any camera or the petitioner having asked her to hide it, when officials enquired from her.
(3) No incriminating object or article including the camera was seized from the petitioner’s possession. It is unclear as to who owned the camera seized by the respondents.
(4) The petitioner was placed under open arrest the next day. He – according to PW-7, PW-8 and another witness, confessed to having clicked with the camera and having hidden it with PW- 9. The next day, PW-9 made another statement, leading to recovery of the camera. This internal contradiction between the version of PW-9 assumes importance because in her first statement, she never said anything about the camera. Her deposition in the Record of Evidence proceeding was over a week later, i.e. 25.06.2005.
(5) No written record of the confession said to have been made on 18th June, 2005 exists;
(6) Most importantly, the camera reel (though recovered on 18th June, 2005) was never developed. It was the best evidence of the petitioner’s culpability.” (Para 6)
In a nutshell, the submissions on behalf of the appellants were that there was no infraction of the procedure prescribed; the principles of natural justice were duly observed; the decision was based on acceptance of guilt; and since the original petitioner is part of a disciplined force and was found guilty of clicking photographs of a lady doctor while she was taking a bath, and whom he was required to protect, the punishment of dismissal cannot be faulted. Consequently, the order of the High Court deserves to be set aside. (Para 14)
In the instant case, from the materials brought on record we find that the original petitioner was placed under open arrest on 20.06.2005. On 21.06.2005, the Commandant of 128 Battalion BSF, wherein the original petitioner was posted, issued an order for recording of evidence. During the course of recording of evidence, the last witness statement, that is of PW-10, was recorded on 29.06.2005. On 29.06.2005 itself, the original petitioner was asked to give his statement. According to the original petitioner, the abstract of evidence was not provided to him and twenty-four hours’ time was not given to him for reflection therefore, there was a clear infraction of the proviso to sub rule (3) of Rule 49 of the BSF Rules, 1969. Hence, according to the original petitioner, confession, if any, made during the course of preparation of the record of evidence, is liable to be ignored. (Para 27)
In our view, there appears substance in the aforesaid submission of the learned counsel for the original petitioner. Moreover, in the instant case after preparing the record of evidence, the Commandant in exercise of his power under Rule 45(2)(iv) of the BSF Rules, 1969, vide order dated 05.07.2005, remanded the original petitioner for trial by an SSFC. In these circumstances, the trial had to proceed as per Chapter XI of the BSF Rules, 1969 and, therefore, the statement, if any, recorded during investigation or preparation of the record of evidence could have been used as a previous statement of the witness for the purposes of cross-examining the witness as and when the witness was examined before the Security Force Court. This we say so, because by virtue of Section 87 of the BSF Act, 1968 the general rules of evidence as laid in the Evidence Act, 1872, subject to the provisions of the BSF Act, 1968, are applicable to all proceedings before a Security Force Court. Therefore, by virtue of Section 145 of the Evidence Act, 1872, a witness may be cross examined as to previous statements made by him. (Para 28)
In light of the discussion above and also taking into account that the minutes of the proceedings recording the plea of guilty did not bear the signature of the original petitioner, in our considered view, the High Court was justified in finding the dismissal of the original petitioner on the basis of the plea of guilty unwarranted and liable to be set aside in exercise of powers under Article 226 of the Constitution of India. The High Court was also justified in not re-opening the proceeding from the stage where the error crept in by noticing that it would serve no useful purpose as there was hardly any evidence on record and nearly a decade had passed since the date of the incident. (Para 39)
SUPREME COURT OF INDIA
2023 STPL(Web) 242 SC
[2023 INSC 802]
Union Of India & Others Vs. Jogeshwar Swain
Civil Appeal Nos.8629-8630 of 2014-Decided on 5-9-2023
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