Kailash Chand Dig v. Union of India and Ors

(c) to forfeit nine years past service for the purpose of pension;

(d) to suffer fine of Rs. 2,00,000/- (Two lakhs), and;

9. The findings and sentence were confirmed by the ADG (Ops) HQ BSF, New Delhi on 10.02.2014.

10. Feeling aggrieved by the finding and sentence of GSFC, the petitioner submitted a Statutory Petition dated 19.05.2014 addressed to Director General[7] BSF with the prayer to set aside the finding and sentence of GSFC.

11. The DG, on 15.10.2014, rejected the petitioner‟s statutory petition being devoid of merit.

12. Dissatisfied by the order passed by the DG, the petitioner is before us under Article 226 of the Constitution of India, challenging the proceedings, findings, and sentence of GSFC held between the period 12.12.2012 to 20.08.2013 and against the order dated Hereinafter, “BSF Rules” Hereinafter, “DG” 15.10.2014, whereby the petitioner‟s statutory complaint dated 19.05.2014 against the GSFC was rejected.

13. The learned Counsel appearing on behalf of the petitioner, Mr. Himanshu Gautam contends that the complaint made by the complainant was motivated by a property dispute between them. After a gap of 1.[5] years, ROE was held in 2012, followed by a charge under Section 46 BSF Act read with Section 493 IPC. The learned Counsel further contends that except the Presiding Officer, all GSFC members and the Law Officers were junior to the petitioner, violating Rule 61 and Rule 124 of BSF Rules. On this aspect, he relied upon Union of India & Anr. v Charanjit S. Gill & Ors. 8, which requires a Law Officer not junior in rank to the accused unless unavailability is recorded. He raises an objection relating to jurisdiction of GSFC under Rule 72 of BSF Rules.

14. He further invalidated the charge under section 493 IPC, contending that no deceitful inducement could have occurred since the complainant knew petitioner was married with children. Thus, the essential ingredients of Section 493 IPC i.e. „false belief in lawful marriage and cohabitation‟, were not fulfilled. There were contradictory evidence as the complainant herself in 30.10.2000 letter declared that she was the widow of petitioner‟s brother, contradicting her claim of marriage with the petitioner. He also states that there was no witness to testify the marriage ceremony as alleged between the petitioner and the complainant.

15. The learned counsel for the petitioner also contends that the GSFC relied entirely on complainant‟s statements, ignoring contradictions and defence evidence. Due to procedural irregularities, violation of legal norms, and lack of substantive evidence, the GSFC proceedings are vitiated and liable to be quashed.

16. Per contra, learned Central Government Standing Counsel, Mr. Rakesh Kumar, appearing for the respondents, submits that all statutory and procedural safeguards as envisaged under the BSF Act and Rules were scrupulously adhered to during the proceedings. The petitioner was afforded full opportunity to defend himself, and no violation of natural justice or legal procedure has been demonstrated. He further contends that the petitioner‟s reliance on an affidavit allegedly signed by the complainant is misplaced, as she later denied its execution, alleging coercion, and reaffirmed her allegations during cross-examination in GSFC proceedings.

17. Regarding the jurisdiction, Mr. Kumar submits that the inquiry and trial were lawfully conducted in Delhi due to the location of the complainant and nature of allegations. The ROE, and not earlier SCOI reports, formed the basis for trial. The disciplinary authority acted within its jurisdiction. As to the amendment of the charge, he argues that it was done legally under Rule 57 of BSF Rules following prosecution evidence. Objections by the defence were duly considered and rejected by the GSFC.

18. Mr. Kumar further submits that the conviction is based on comprehensive evidence, not solely on the complainant‟s testimony. The petitioner had full opportunity to present his case, and no procedural irregularity or legal infirmity has been shown. Accordingly, the respondents pray that the writ petition be dismissed.

19. After hearing learned Counsel for both sides, we are of the opinion that there is no merit whatsoever in the writ petition for the following reasons:

20. The first contention regarding lack of jurisdiction or improper constitution of the GSFC deserves to be rejected at the threshold. Rule 61(2) of the BSF Rules mandates that officers trying another officer must be of rank not lower than the accused. As such, the plea regarding violation of Rule 61(2) stands belied by the record. In the present case, the petitioner, then a DIG, was tried by officers of equivalent or senior rank. No material has been placed on record to show that the members of the Court were junior to the petitioner.

21. With respect to the objection regarding the competency of the Law Officer, this Court finds no merit in the petitioner‟s contention. Rule 124 of the BSF Rules, 1969, while laying down the eligibility criteria for appointment of a Law Officer, does not impose an inflexible or absolute embargo against appointing an officer junior in rank to the accused. The said Rule permits such appointment where adequate justification exists, subject to the satisfaction of the competent authority. From the perusal of the original record produced before this Court, it is evident that the Convening Order dated 12.12.2012 clearly records a specific noting to the effect that no officer of the requisite rank was available for appointment as Law Officer at the relevant time. In view thereof, the procedural mandate stands duly complied with. The relevant portion of the Convening Order is extracted hereinbelow for reference: “ORDER FOR THE ASSEMBLY OF A GENERAL SECURITY FORCE COURT UNDER THE BORDER SECURITY FORCE ACT, 1968 Orders By Shri M. Tripathi Inspector General (Prov)

HQ DG BSF Block-10, CGO Complex, New Delhi Place New Delhi Date 12 December 2012 The details of Officers as mentioned below will assemble at BSF STS Tigri, New Delhi on 12th December, 2012 for the purpose of trying by a General Security Force Court, the accused person named in the margin. The Senior Officer to sit as Presiding Officer.

MEMBERS

1. IRLA No.17622745 Shri M. L. Batham, IG(HQ), FHQ.

2. IRLA No.18430486 Shri Jai Bhagwan Sangwan, DIG(TRG.)FHQ.

3. IRLA No.18736694 Shri Karan Singh Rathore, DIG SHQ Bikaner.

4. IRLA No.18632163 Shri J C Singla, DIG (Adm Dte) FHQ.

5. IRLA No.18736182 Shri Pramod Kumar Yadav, DIG (Oph), Ftr, HQ Ghty.

WAITING MEMBERS

1. IRLA No.18632156 Shri A. K. Tiwari, DIG(W/W) Prov. Dte. FHQ

2. IRLA No.18735819 Shir Azad Singh Malik, DIG (Prov.) Ftq. Hq Meghalaya.

PROSECUTOR IRLA No.18632231 Shri Ashvini Kumar Sharma, DIG SHQ Abho LAW OFFICER IRLA No.19350318 Shri S. S. Rana, LO GD-I/Comdt. Ftr.HQ Rajasthan is appointed Law Officer. In the opinion of the Convening Officer, Law Officer of equal or superior rank to the accused is not available, having due regard to the public service. IRLA No.18429749 Shri Kailash Chand, DIG SHQ Uadipur attached with STS BSF New Delhi OFFICER UNDER INSTRUCITONS IRLA No.10592342 Shri Umed Singh Daryal, DC(Law), Ftr. HQ Meghalaya is detailed as officer under instruction. The accused person will be warned and all witnesses duly required to attend. The proceedings (of which only two copies are required) will be forwarded to the Additional DG(Ops)FHQ through the Chief Law Officer, Dte. General BSF, New Delhi. -Sd- (M.Tripathi) Inspector General (Prov)

22. In the absence of demonstrable prejudice caused to the petitioner, and no contemporaneous objection having been raised at the time the convening order was read out, this ground raised by the petitioner deserves to be rejected.

23. It is evident that the disciplinary proceedings against the petitioner were initiated upon receipt of a serious complaint from the widow of the petitioner‟s deceased younger brother, wherein it was alleged that the petitioner had deceitfully induced her into believing that she was lawfully married to him and had forcibly cohabited with her. The competent authority, after due application of mind and in exercise of powers under Rule 174 of the BSF Rules, 1969, directed the holding of a SCOI, which was duly followed by an Additional SCOI. Upon evaluation of the material collected during the inquiries, a prima facie case was found to exist against the petitioner, warranting the holding of a Record of Evidence (ROE). After due scrutiny of the ROE, the competent disciplinary authority decided to convene a General Security Force Court, as permissible under the provisions of the BSF Act and Rules.

24. As regards the framing and amendment of the charge, the record demonstrates that the charge was initially framed in accordance with Rule 54 of the BSF Rules, clearly setting out the nature of the offence, the time period, place of occurrence, and the identity of the person against whom the offence was allegedly committed. The subsequent amendment to include the place “Terihat” was made during trial pursuant to the deposition of PW-1, upon an application moved by the prosecution. The GSFC, after considering the defence objections, passed a reasoned order allowing the amendment in exercise of powers under Rule 57 of the BSF Rules. This Court finds no infirmity in the said amendment, which was legally permissible and did not result in any prejudice to the petitioner.

25. The petitioner‟s reliance on an affidavit allegedly executed by the complainant has also been adequately addressed in the statutory proceedings. The complainant, during cross-examination in the GSFC, specifically denied execution of any affidavit and alleged that her signatures had been obtained under threat and coercion. She reaffirmed the allegations against the petitioner during trial. Thus, no benefit can be claimed by the petitioner from such an affidavit which was neither admitted nor proved in accordance with law.

26. The jurisdictional objection raised by the petitioner with respect to territorial competency is equally meritless. The petitioner was attached to STS BSF, New Delhi during the relevant period, and the complainant was residing in Ghaziabad. The alleged acts occurred at multiple locations including Terihat, Jammu and Ghaziabad. Given the nature of the allegations and place of occurrence as emerging from the record, it cannot be said that the GSFC lacked jurisdiction. Moreover, the entire process of hearing under Rule 45B, conduct of ROE, and initiation of GSFC was undertaken by competent authorities in accordance with the chain of command and applicable statutory provisions.

27. The record further reveals that the petitioner availed full opportunity to defend himself. He examined as many as 18 defence witnesses and was granted adjournments as sought. He was also permitted to visit Bagafa for collection of documents for his defence. No procedural unfairness or breach of natural justice has been shown.

28. The petitioner‟s argument that the GSFC‟s findings are based solely on the complainant‟s testimony is also factually incorrect. The GSFC considered all evidence on record, including oral testimonies and documentary material, and arrived at a reasoned finding of guilt. The conviction was not based on mere ipse dixit of the complainant but on cumulative appreciation of the evidence.

29. This Court is cognizant of the legal position expounded by the Hon‟ble Supreme Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh[9], wherein it was held that the High Court, in exercise of writ jurisdiction, does not sit as an appellate authority to reappreciate evidence but is confined to examining the legality, regularity and propriety of the impugned order. The present case does not disclose any such infirmity.

30. The High Court, in exercise of its writ jurisdiction, does not function as an appellate court to reappreciate evidence or substitute its own findings for those arrived at by a duly constituted Court or Tribunal, unless the decision suffers from perversity, illegality, or manifest unreasonableness. In this regard, it is useful to refer to the judgment of the Hon‟ble Supreme Court in Syed Yakoob v. K.S. Radhakrishnan & Ors Syed Yakoob10, wherein the scope of certiorari jurisdiction was succinctly laid down as follows: xxx

AIR 1964 SC 477 certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque[1] Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam and Kaushalya Devi v. Bachittar Singh.” xxx

31. Applying the above principles, the present case does not disclose any error of jurisdiction, procedural irregularity, or breach of natural justice. The findings of the GSFC are based on comprehensive evaluation of oral and documentary evidence, and do not suffer from any illegality or perversity warranting interference by this Court under Article 226.

32. This Court cannot ignore the nature of the allegations which involve a serious breach of trust, propriety, and dignity expected from a senior officer of a disciplined force. The act of deceitfully inducing a woman, particularly the widow of one‟s deceased brother, into a belief of lawful marriage and cohabiting with her, if proved, is not only an offence under the Indian Penal Code but also constitutes grave moral turpitude unbecoming of a senior officer of the BSF. The act attributed to the petitioner is highly condemnable and militates against the standards of discipline, integrity, and honour expected of the uniformed services.

33. The procedural framework under the BSF Act and Rules has been duly adhered to at every stage. The petitioner has failed to demonstrate any illegality, perversity, or procedural lapse warranting interference by this Court in exercise of writ jurisdiction. It is a settled position of law that findings of a Court Martial or its equivalents like the GSFC are not to be interfered with unless they are patently illegal or shock the conscience of the Court. No such exceptional circumstance is made out in the present case.

34. The rejection of the statutory petition by the Director General, BSF, is reasoned and based on due appreciation of record. This Court finds no infirmity in the said decision either.

35. For the reasons and observations recorded hereinabove, this Court finds no ground to interfere with the findings and sentence imposed by the GSFC. The writ petition is accordingly dismissed, with no orders as to costs. AJAY DIGPAUL, J. C.HARI SHANKAR, J. APRIL 7, 2025 Click here to check corrigendum, if any