Full Text
HIGH COURT OF DELHI
Date of Decision: 31st July, 2026 # CNR No. DLHC010343882026
MR. BIJU KUMAR R Ex- Head Constable (GD)
No. 954032111 13/246, Kaniyentayyathu, Pada North
P.O. Karunagarpally
District Kollam (Kerala) – 690518
…Petitioner
Through: Mr. Pranav Krishna, Mr.Ankur Vyas and
Ms.Srishti Mayank, Advocates
JUDGMENT
1. UNION OF INDIA (Ministry of Home Affairs) Through Secretary North Block New Delhi – 110001 Email: incharge.lit@gov.in …Respondent No. 1
2. BORDER SECURITY FORCE Through The Director General Force Headquarters Block 10, CGO Complex Lodhi Road New Delhi – 110003 Email: edpdte@bsf.nic.in/ incharge.lit@gov.in …Respondent No. 2 Through: Mr. Bhagwan Swarup NEGI 18.05 Shukla, CGSC Mr.Deepansh Sharma, GP and Ms.Jyoti, Advocates CORAM: HON’BLE MR.
JUSTICE NITIN WASUDEO SAMBRE HON’BLE MR.
JUSTICE AMIT SHARMA JUDGMENT (ORAL) AMIT SHARMA, J.
1. The present petition under Article 226 of the Constitution of India, 1950 seeks the following prayers:- “a. issue an appropriate writ, order or direction quashing and setting aside the Dismissal Order dated 10.03.2025 passed by the Summary Security Force Court, STC BSF Churachandpur, Manipur and the Rejection Order dated 17.04.2026 passed by the Director General, BSF; b. issue an appropriate writ, order or direction to the Respondents to reinstate the Petitioner in service with all consequential benefits including back wages, pension, and other service benefits as may be found due and payable; c. in the alternative, direct the Respondents to revise the punishment from dismissal to a lesser punishment as deemed appropriate by this Hon'ble Court; d. pass such further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER, AS IS DUTY BOUND, SHALL EVER PRAY.” NEGI
18.05
2. The relevant facts necessary for the adjudication of the present petition in brief are as under: - (a) The petitioner was posted as Nursing Assistant/Physiotherapist at the STC BSF Churachandpur, Manipur; (b) One recruit constable (GD), i.e., the complainant, lodged a written complaint alleging misconduct by the petitioner during his admission at the aforesaid hospital, with regard to disgraceful conduct of an unnatural kind;
(c) Following a record of evidence, the Summary Security Force
Court (SSFC) tried and convicted the petitioner under Section 24 (a) of the BSF Act, 1968, and sentenced him with the punishment of “dismissal from service” vide order dated 10th March, 2025;
(d) The petitioner, thereafter, preferred a petition under Rule 167
(2) of the Border Security Rules, 1969, read with Section 117 of the Border Security Force Act, 1968 before the Statutory Authority i.e. Director General (DG), which was rejected vide order dated 17th April, 2025 passed by the Statutory Authority; (e) Hence, the present petition.
3. Learned counsel appearing on behalf of the petitioner submits that the petitioner has served as Head Constable for approximately 29 years and 4 months, earning 15 rewards and carrying only one minor punishment in the year 2003. It is the submitted that the proceedings before the SSFC suffers from fundamental infirmity, inasmuch as there existed material variance between the charge framed and the findings given by the SSFC. It is pointed out that the charge under Section 24 (a)- ‘Disgraceful conduct of indecent kind’ of the said Act was confined to a single incident, which alleged to have occurred on 11th February, 2025 at 0030 hours. However, the NEGI
18.05 prosecution included earlier alleged incidents across two days, i.e., 9th and 10th February, 2025. It is further submitted that the conviction rests only on the sole testimony of the complainant (PW-1), which is materially inconsistent with his written complaint dated 11.02.2025 and his statement during ROE dated 21.02.2025. The said contradictions have been placed on record, by way of a table which is reproduced hereinbelow: - NEGI
18.05 NEGI
18.05
4. It is further submitted by learned counsel appearing on behalf of the petitioner that the Statutory Authority exercising quasi-judicial power, was required to pass a speaking order on each of the grounds raised; however, the same has not been done. Moreover, it is argued that the rejection order uses pejorative language describing the petitioner as exhibiting ‘sexual perversion’ and someone who ‘pounces upon young recruits’, demonstrating a pre-determined mind, and thus, there was a failure to judicially adjudicate in a detached and objective manner. It is also the submission of learned counsel appearing on behalf of the petitioner that the latter has been labelled as ‘habitual offender’ on the basis of single minor punishment in the year
2003.
5. It is also urged by learned counsel appearing on behalf of the petitioner that the material witnesses and documents from the concerned hospital were not recorded or produced. It is also submitted that there was denial of real and meaningful assistance under Rule 157 of the aforesaid Rules read with Article 21 of the Constitution of India, inasmuch as, the friend of accused was an Officer from the same unit, who conducted no effective cross-examination and summoned no material witnesses on record.
6. Finally, it is the case of the petitioner that without prejudice to his case on merits, even if the charges were proved, then also the punishment of dismissal from service, based on the aforesaid record is grossly disproportionate, and therefore, a lenient view ought to have been taken by the respondents.
7. Per contra, learned counsel appearing on behalf of the respondents, who appears on an advance notice, submits that the proceedings before the SSFC suffer from no infirmity, as all the statutory rules and procedures were duly followed. It is further submitted that petitioner was given due NEGI
18.05 opportunity to cross-examine the witnesses, and he had availed the said opportunity, and same was duly appreciated by the statutory authority vide the rejection order dated 17th April, 2026, and therefore, the present petition deserves dismissal.
8. Heard the learned counsel for the parties and perused the records.
9. The charge preferred against the petitioner at the trial is as under:- BSF ACT, SECTION- 24(a)
DISGRACEFUL CONDUCT OF AN UNNATURAL KIND in that he, at Hospital of STC BSF Churachandpur (Manipur) on 11.02.2025 at about 0030 hrs while performing duty as physiotherapist committed disgraceful conduct of an unnatural kind with Roll No.4207033847 Recruit Constable (GD) Prabhat Kumar Singh, "B" Coy, while he was admitted at Hospital of STC BSF Churachandpur (Manipur).
10. During the proceeding before the SSFC, 8 witnesses were examined. Gist of the testimonies of the said witnesses, as noted by the Statutory Authority in the order dated 17th April, 2026, read as under:-
11. At this stage, a useful reference can be made to the judgment of the Hon’ble Supreme Court in Union of India v. Major A. Hussain[1], with respect to power of judicial review under Article 226 of the Constitution of India, 1950, in respect of Court Martial(s). The Hon’ble Supreme Court in
18.05 the said judgment, while holding that the Court Martial is not subject to superintendency under Article 227 of the Constitution of India, had observed and held as under:- “22. We find the proceedings of the General Court-Martial to be quite immaculate where trial was fair and every possible opportunity was afforded to the respondent to defend his case. Rather it would appear that the respondent made all efforts to delay the proceedings of the court-martial. Thrice he sought the intervention of the High Court. Withdrawal of the defence counsel in the midst of the proceedings was perhaps also a part of his plan to delay the proceedings and to make that a ground if the respondent was ultimately convicted and sentenced. Services of qualified defending officer were made available to the respondent to defend his case, but he had rejected their services without valid reasons. He was repeatedly asked to give the names of the defending officers of his choice but he declined to do so. The court-martial had been conducted in accordance with the Act and Rules and it is difficult to find any fault in the proceedings. The Division Bench said that the learned Single Judge minutely examined the record of the court-martial proceedings and after that came to the conclusion that the respondent was denied reasonable opportunity to defend himself. We think this was a fundamental mistake committed by the High Court. It was not necessary for the High Court to minutely examine the record of the General Court-Martial as if it was sitting in appeal. We find that on merit, the High Court has not said that there was no case against the respondent to hold him guilty of the offence charged.
23. Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a courtmartial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings of a court-martial are NEGI
18.05 not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, courtmartial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment.”
12. Keeping in mind the aforesaid dictum, this Court has examined the records.
13. Admittedly, the offence against the petitioner is serious in nature.
14. As per the proceedings recorded, an opportunity was given to the petitioner to call for defence and make a statement. As per record, the petitioner declined to call the witnesses; however, he gave a written NEGI
18.05 statement wherein he stated that he had put eye drops in the eyes of PW-1 and asked to move his eyes up and down, and further instructed him not to look at the light and use mobile, as per the instructions given to him by Dr. Laxman Singh, CMO. In the said written statement, the petitioner had further stated that he did not understand as to why PW-1 was trying to frame him by making false allegations. He further stated that 3 recruit constables were present in the hospital when he was administering eye drops in PW-1’s eyes at 18:50 Hours on 09.02.2025. The record of the SSFC placed on record by the petitioner further demonstrates that out of eight witnesses, the petitioner had only cross-examined PW-1, PW-2, PW-4 and PW-6.
15. At no stage of the proceedings before the SSFC, in the statutory petition filed before the DG, BSF, or in the present petition has the petitioner alleged that the complainant was actuated by any motive to falsely implicate him. Even as per the own case of the petitioner, the complainant was a new recruit and was completely unknown to him, who had been admitted in the hospital for an eye procedure. The complainant in his complaint, as well as testimony recorded before the SSFC, has been consistent with respect to the time and date of the incident.
16. The argument of the petitioner that there was no eye witness to the incident, is untenable. It is settled law that in such cases the testimony of the complainant is sufficient and it needs no corroboration. The evidence also shows that the other witnesses namely, CT (GD) Vinay Kumar Yadav (PW- 4), Rectt CT (GD) Abhijeet Kumar (PW-2), and Rectt CT (GD) Kunal Kumar Singh, to whom the complainant had told about everything the petition did to him, were present on the day of the incident, and even otherwise, the perusal of the record would reflect that the incident had occurred when there was no one around. The complainant, i.e., PW-1, had NEGI
18.05 gone on record to state that immediately after the incident, he had shared the same with the other colleagues, and had reported the matter to his superior. The fact that a new recruit, completely unknown to the petitioner, has gone on record to make the aforesaid allegations, thereby exposing himself, is a material circumstance to be considered in the present case. It is highly unlikely for a person to make an allegation of the present nature against a totally unknown person, thereby exposing himself to social embarrassment in front of his colleagues.
17. So far as the contention of learned counsel for the petitioner with respect to contradictions, as alleged in the testimony of the complainant, is concerned, a perusal of the same would reflect that the same are not material in nature, inasmuch as, the main allegation of the incident occurring on 9th February, 2025 has been consistently stated by PW-1. It is also matter of record that opportunity was given and availed by the petitioner to crossexamine PW-1; however, the aforesaid contradictions were never put to the said witness. Another aspect which requires consideration is that admittedly the petitioner had earlier been found guilty of a similar charge under Section 24 (a) of the Act, for ‘Disgraceful conduct of an unnatural kind’ in the year
2003. It is the case of the respondent that on 28th March, 2003, the petitioner had committed a similar act with recruit of ‘B’ Coy, STC BSF Kashmir, where the said personnel was admitted in MI Room of STC BSF Kashmir. The petitioner was found guilty of the said charge, and was given 28 days RI in force custody on 14th August, 2003.
18. In these circumstances, it will be reasonable to conclude that the petitioner, who had faced similar charges on the previous occasion, was well-versed with the proceedings, and the plea now taken by the petitioner NEGI
18.05 that the friend of the accused had not conducted effective cross-examination of the witnesses, is an afterthought.
19. Learned counsel for the petitioner could not point out from record to show that such an objection was taken at the relevant point of time while the SSFC proceedings were ongoing. Even in the written statement given by the petitioner before the SSFC, no objection had been taken with regard to the procedure followed for denial of the right of effective cross-examination of the petitioner.
20. Further, the contention of the learned counsel for the petitioner with respect to disproportionate punishment awarded to him, is concerned, it is pertinent to note that the same was raised before the statutory authority and was dealt in the following manner: -
21. In the considered opinion of this Court, the observations made by the Statutory Authority are in line with the severity of the offence committed by the petitioner, and overall interest of the force.
22. In the facts and circumstances, this Court finds no reason to interfere with the impugned order passed by the Statutory Authority, as well as dismissal order dated 10th March, 2025 passed by SSFC, Manipur, in the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
23. The petition, therefore, stands dismissed and disposed of.
24. Pending application (s), if any, also stands disposed of accordingly.
NITIN WASUDEO SAMBRE (JUDGE)
AMIT SHARMA (JUDGE) JULY 31, 2026/nk/ns NEGI 18.05