Union of India v. Mudrika Singh

9 Ms Madhavi Divan, Additional Solicitor General appearing on behalf of the appellants has urged the following submissions:

(i) The High Court has taken a hyper-technical view of the matter and has failed to appreciate that the provisions of the BSF Act 1968 and BSF Rules 1969 are robust enough to cover the present case;

(ii) The Commandant directed the preparation of an additional RoE by his order dated 10 June 2006. It is evident from a reading of the original RoE and additional RoE that this is not a case of ―insufficient evidence‖ as envisaged under Rule 59 of the BSF Rules 1969, but a case of "clarificatory evidence";

(iii) In a minor inaccuracy, the complainant had stated that the incident took place on 16 April 2006 when he was detailed to Naka duty, whereas the incident actually took place on the intervening night of 16 April 2006 and 17 April

2006. It was this inaccuracy which was sought to be corrected in the additional RoE;

(iv) There is no provision under the statute or under the rules prohibiting the

(v) In 2011, Rule 51 was amended by the insertion of clause (2) under which an express power has been conferred on the Commandant to direct the recording of further evidence. This provision is clarificatory in nature;

(vi) In any event, Rule 6 is wide enough to cover any alleged limitation in Rule 51. Rule 6 provides:

―6. Case unprovided for. - In regard to any matter not specifically provided for in these rules, it shall be lawful for the competent authority to do such thing or take such action as may be just and proper in the circumstances of the case.‖

(vii) The conclusion of the High Court that the Commandant did not possess the authority to order the recording of additional evidence and that he had usurped the power of the superior authority under Rule 59, is perverse; and

(viii) Neither the provisions of Rule 149 nor those of Section 117(2) require the

SSFC or the Director-General to give reasons in support of their decision. This principle is settled by the judgment of this Court in Union of India v. Dinesh Kumar[7].

(i) Rule 6 of the BSF Rules 1969 applies only to a matter which is not specifically provided in the Rules. On the contrary, Rule 51 specifically enunciates the power of the Commandant. In the absence of specific conferment of power to order the preparation of an additional RoE at the material time, the Commandant had no power to do so;

(ii) The power to record further evidence is conferred only on a superior authority convening a Court under Rule 59;

(iii) Where a Commandant decides under Rule 51(2)(iv) to apply to a competent officer to convene a court for the trial of a person, only such officer or authority can exercise any of the powers provided in Rule 59 which includes returning the case for recording further evidence, if the evidence on record is insufficient;

(iv) As a result of the order of the Commandant, the evidence of the same witnesses was recorded twice over and without the authority of law. In the process of doing so, the Commandant usurped the power of the superior officer or authority who exercises specific powers under Rule 59;

(v) The SSFC has not recorded any reason to support the conclusion that the charge against the respondent was proved;

(vi) The facts of the case would indicate that:

(a) The RoE prepared by the officer detailed by the Commandant by his order dated 2 May 2006 was insufficient to prove the charge; (b) The preparation of the additional RoE was ordered to furnish the prosecution witnesses who had already been examined, crossexamined and re-examined – with a second chance to prove the charge; and

(c) The authority which decided the statutory petition under Section 117 has not found that the RoE prepared in accordance with the order of the Commandant dated 2 May 2006 was insufficient to prove the charge;

(vii) The decision of the SSFC is vitiated by incurable illegality, since the order passed on the basis of additional RoE prepared in terms of Commandant‘s order dated 10 June 2006 was without jurisdiction;

(viii) The Division Bench of the High Court was justified in holding that the

SSFC is required to furnish a modicum of reasons in support of its conclusion of guilt, and some application of mind must be demonstrated. Rule 151 requires reasons to be furnished for awarding the sentence when a finding of guilt is returned. A range of sentences has been prescribed and reasons to support the order of a particular sentence is necessary; and

(ix) The High Court was justified in holding that the finding of guilt cannot be based on an ipse dixit order of the superior officers. Unless the ultimate decision is informed by reason, it will fall foul of Article 14 of the Constitution.

12 Essentially, down to its core, the controversy in the present case turns upon two aspects: firstly, whether the Commandant prior to the amendment of Rule 51 in 2011 had jurisdiction to direct the preparation of an additional RoE; and secondly, whether the finding of guilt which has been recorded by the SSFC stands vitiated in the absence of reasons. Now, before we analyse the first of the above two facets, it becomes necessary to understand the circumstances in which the Commandant directed the Assistant Commandant to prepare an additional RoE on 10 June 2006.

13 On 2 May 2006, the Deputy Commandant of the Seventy-second Battalion was detailed to prepare a RoE on the allegation that the respondent had committed an offence under Section 24(a) of the BSF Act 1968. The allegation was that when he was on Naka duty from 02:00 hours to 06:00 hours on 16 April 2006, the respondent had committed an act of sexual assault on a Constable. In the course of preparing the RoE, the complainant, examined as PW[1], reported that: ―I joined 72 BN BSF on 19 Feb 2006 and further posted to B-Coy of Unit B-Coy is deployed in Sahebkhale Sub-Sector. I went to BOP Sahebkhali on 03 April 06 and afterward had been performing duty in BOP Sahebkhali. I was on Naka/Patrolling duty from 0200Hrs to 0600 Hrs on 16 April 06 alongwith No.84001083 HC Mudrika Singh. At 0400Hrs on 16 April 06 while both of us were sitting on OP Machan (OP No.2) HC Mudrika Singh caught my Penis. HC Mudrika Singh bounded me to undergo sex with him by force. Which incident I reported to Coy Commder on same day at 0800 hrs. But I did not do sex with him.‖ Besides the complainant, the evidence included the statement of PW[2], who produced an extract of the General Duty Register on 17 April 2006. PW[2] deposed that the respondent and the complainant left for patrolling at 01:50 hours on 17 April 2006 and returned at 06:25 hours on 17 April 2006. 14 PW2‘s evidence demonstrates that there was an evident error in PW1‘s reference to 16 April 2006. The incident took place in the night which intervened 16 and 17 April 2006, i.e., in the early hours of 17 April 2006. It was in this backdrop, that on 10 June 2006, the Commandant ordered the Assistant Commandment to prepare an additional RoE so as to clarify the date on which the incident had occurred. Significantly, after the SSFC‘s order dated 7 August 2006 by which the respondent‘s rank was reduced to that of a Constable, in the course of his statutory petition he clearly stated that: ―That I was charged with false allegation that at about 4.00 hrs on 17th April, 2006 while on Nake duty in AOR of BOP Sahebkhali I caught hold of the Penis of No. [xyz] constable [xyz] of the same Unit.‖ The defence of the respondent was that: ―That I categorically say that because constable [xyz] was lying or Machan on 17.4.2006 at about 04.50 hrs. and was sleeping I awoke him and told him to keep watch upon the weapons and sets otherwise there can be stolen and I further told him that if he sleeps during duty hours then I would report (sic) him to the (sic) Commandant. I say that because I gave the warning to [xyz] for his negligence in duty he made false allegation against me for taking revenge.‖ The above extract would make it abundantly clear that there was no ambiguity, insofar as the respondent is concerned that the alleged conduct with which he was charged, had taken place in the early hours of 17 April 2006. As a matter of fact, the defence of the respondent also pertains to the same incident on 17 April 2006 and the respondent contended that the complainant had levelled a false allegation upon being found to be sleeping while on duty.

15 In this backdrop, it becomes necessary to emphasize that the additional RoE which was ordered by the Commandant was essentially in the nature of a clarification having regard to the discrepancy about the date of the incident namely, whether it was on 16 or 17 April 2006. This was evidently because the incident took place on the intervening night of 16 and 17 April. As noted above, the respondent himself has in the course of his statutory petition, sought to highlight the events which had transpired in the early hours of 17 April 2006 when he was on duty. After settling the issue of insufficiency of evidence, we advert to the two questions of law that have been raised in the appeal: (i) whether the Commandant has the jurisdiction to direct preparation of an additional RoE; and (ii) whether the SSFC is under an obligation to record reasons under Rule 159 of the BSF Rules 1969 when it determines the guilt of an accused. C.[1] Jurisdiction of the Commandant 16 The unamended Rule 51 of the BSF Rules 1969 provided as follows: ―51. Disposal of case against an enrolled person by Commandant after record or abstract of evidence.- (1) Where an officer has been detailed to prepare the record of evidence or to make an abstract thereof, he shall forward the same to the Commandant. (2) The Commandant may, after going through the record or abstract of evidence including additional evidence:

(i) Dismiss the charge, or

(ii) rehear the charge and award one of the summary punishments; or

(iii) try the accused by a Summary Security Force Court where he is empowered so to do, or

(iv) apply to a competent officer or authority to convene a

Court for the trial of the accused.‖ PART C Under sub-rule (1) of Rule 51, an officer who is detailed to prepare the RoE has to forward it to the Commandant[8]. Thereafter under Rule 51 (2), the Commandant may, after going through the record, proceed with any of the course of actions detailed in

(i) to (iv), which includes trying the accused by an SSFC. The High Court has noticed that as a result of the amendment in 2011[9], what is previously included in Rule 51(2) has been, in substance, incorporated in Rule 51(3) of the amended BSF Rules 1969. A new sub-rule (2) has been introduced which reads as follows: "(2) if the Commandant considers the evidence recorded insufficient but considers that further evidence may be available, he may remand the case for recording additional evidence." The amended Rule 51 of the BSF Rules 1969 thus provides for the following: ―51. Disposal of case against enrolled person by Commandant after record or abstract of evidence.— (1) Where an officer has been detailed to prepare the record of evidence or to make an abstract thereof, he shall forward the same to the Commandant. (2) If the Commandant considers the evidence recorded insufficient but considers that further evidence may be available, he may remand the case for recording additional evidence. (3) The Commandant may, after going through the record or abstract of evidence including additional evidence, if any:—

(i) dismiss the charge after recording the reasons thereof[sic]; or

(ii) rehear the charge and award summary punishments; or

(iii) try the accused by a Summary Security Force Court where he is empowered so to do: Section 2(1)(f) of the BSF Act 1968 defines it thus: ―2. (1)(f) ‗Commandant‘, when used in any provision of this Act with reference to any unit of the Force, means the officer whose duty it is under the rules to discharge with respect to that unit, the functions of a Commandant in regard to matters of the description referred to in that provision‖ S.O. 2628(E) on 25 November 2011 PART C Provided that the Commandant while convening a Court may reframe the charge; or

(iv) apply to a competent officer or authority to convene a Court for the trial of the accused.‖

17 The High Court inferred that ―the incorporation of the amendment demonstrates that at the relevant point of time, the Commandant did not have the power to direct additional evidence to be recorded‖. Yet, the High Court also observed that the 2011 amendment to the BSF Rules 1969 could be of a clarificatory nature: ―At the same time, the amendment can be regarded to be clarificatory in nature, in the sense that it was not required to be specifically provided but was inherent to the general authority of the Commandant; and the amendment has been brought by way of abundant caution and to clarify the powers of the Commandant instead of conferring any new authority unto such officer.‖ However, the High Court declined to inquire further into this line of interpretation on the ground that ―there is no submission which has been put forth by either side to throw any light on the relevant provision‖. On this ground, the Division Bench held that the view of the Single Judge ―appears to be a possible view‖ and does not call for interference. The legal position needs to be analysed.

18 Rule 48 of the BSF Rules 1969 provides for the preparation of a record of evidence: ―48. Record of evidence.- (1) The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so.

(2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him: Provided that where statement of any witness at a court of inquiry is available, examination of such a witness may be dispensed with and the original copy of the said statement may be taken on record. A copy thereof shall be given to the accused and he shall have the right to cross-examine if he was not afforded an opportunity to cross -examine the witness at the Court of Inquiry. (3) After all the witnesses against the accused have been examined, he shall be cautioned in the following terms; ―You may make a statement if you wish to do so, you are not bound to make one and whatever you state shall be taken down in writing and may be used in evidence.‖ After having been cautioned in the aforesaid manner whatever the accused states shall be taken down in writing. (4) The accused may call witnesses in defence and the officer recording the evidence may ask any question that may be necessary to clarify the evidence given by such witnesses. (5) All witnesses shall give evidence on oath or affirmation: Provided that, no oath or affirmation shall be given to the accused nor shall he be cross-examined. (6) (a) The statements given by witnesses shall ordinarily be recorded in narrative form and the officer recording the evidence may, at the request of the accused, permit any portion of the evidence to be recorded in the form of question and answer. (b) Witnesses shall sign their statements after the same have been read over and explained to them. (6A) The provisions of section 89 of the Act shall apply for procuring the attendance of the witnesses before the officer preparing the Record of Evidence. (7) Where a witness cannot be compelled to attend or is not available or his attendance cannot be procured without an undue expenditure of time or money and after the officer recording the evidence has given a certificate in this behalf, a written statement signed by such witness may be read to the accused and included in the record of evidence. (8) After the recording of evidence is completed the officer recording the evidence shall give a certificate in following form:-

―Certified that the record of evidence ordered by.....Commandant........................................................was made in the presence and hearing of the accused and the provisions of rule 48 have been complied with‖. (emphasis supplied)

19 Rule 48 of the BSF Rules 1969 clarifies that an officer ordering the RoE may either prepare it himself or detail any officer to do so. The witnesses have to give their evidence in the presence of the accused who has a right to cross-examine them. The accused may call witnesses in defence. An officer recording the evidence is empowered under sub-rule (4) of Rule 48 to ask a question that may be necessary to clarify the evidence given by a witness. It is on the basis of the RoE (or the abstract of evidence, as the case may be) that the Commandant is empowered to take the actions which are referred to in the unamended sub-rule (2) of Rule 51, as it then stood. Under Rule 51(2) which was applicable then, the Commandant was empowered to dismiss the charge; re-hear the charge and award one of the summary punishments; try the accused by SSFC; or apply to a competent officer or authority to convene a court for the trial of the accused.

20 The unamended sub-rule (2) of Rule 51, as was applicable to the facts of the present case, cannot be construed to impose a prohibition on the Commandant to seek clarification, and for that purpose of ordering an additional RoE, to facilitate or aid the further processing of the case. Rule 51(2) does not contain any such prohibition. On the contrary, sub-rule(1) to Rule 48 indicates that the officer ordering the RoE may either prepare an RoE himself or detail another officer to do so. Sub- rule(4) to Rule 48 empowers the officer to ask any question that may be necessary to clarify the evidence. If such a power is conferred upon the officer ordering the RoE while preparing the RoE himself, it would follow by necessary implication, that such a power is available to the Commandant even when the RoE is ordered to be prepared by another officer. The purpose of seeking such a clarification is to facilitate the emergence of the truth as regards the genesis of an incident which is the subject matter of the enquiry. The mere fact that a specific provision empowering the Commandant to call for further evidence was introduced in 2011 cannot result in the conclusion that absent such a power being expressly incorporated, the power did not vest in the Commandant.

21 An amendment to a statute or to statutory rules may often be clarificatory in nature. It is clarificatory in the sense that it expressly recognizes a power that already vests in the authority. In those circumstances, when an amendment is purely clarificatory or declaratory in nature, it is deemed to operate retrospectively.10 For instance, a Constitution Bench in Shyam Sunder v. Ram Kumar11 held that an amending act or a declaratory act need not explicitly mention its declaratory nature to be operative retrospectively. Speaking on behalf of the Constitution Bench, Justice V N Khare (as he then was) noted: ―39. Lastly, it was contended on behalf of the appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive G P Singh, PRINCIPLES OF STATUTORY Interpretation (13 th edn, 2012); Commissioner of Income Tax v. Vatika Township, (2015) 1 SCC 1, para 32 (Constitution Bench); Ghanshyam Mishra and Sons v. Edelweiss Asset Reconstruction Company, 2021 SCC OnLine SC 313 (three-judge Bench) operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word “declaration” in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word ―declaratory‖, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.‖ In Zile Singh v. State of Haryana12, Chief Justice R C Lahoti, speaking for a threejudge bench elaborated on the principle of retrospective operation applicable to clarificatory statutes thus: ―13…. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only — ―nova constitutio futuris formam imponere debet non praeteritis‖ — a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p. 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., p. 440).

14. The presumption against retrospective operation is not applicable to declaratory statutes…. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is “to explain” an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous

Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended…. An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69).

16. Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to “explain” a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature.‖

22 This Court has often recognized amendments to service rules as clarificatory in nature, thereby having a retrospective operation13. In our view, the power to order additional RoE is incidental to realize the purpose of Rules 48 and 51. In any event, residual powers under Rule 6 would protect this action. Since the express power to direct additional RoE under Rule 51 was incidental to the exercise of the existing powers, the amendment to Rule 51 which was brought in 2011 must be construed to be clarificatory. In fact, the High Court proceeded on this line of analysis by observing that the amendment is clarificatory. However, it chose to not take it to its logical conclusion on the tenuous ground that no submission had been put forth by either side to throw light on the relevant provision.

23 In our view, and for the reasons that we have indicated, the fact that the incident took place in the present case prior to the date of the amendment, i.e., 25 November 2011, would make no difference once the amendment, in the true sense S B Bhattacharjee v. S D Majumdar, (2007) 10 SCC 513 (two-judge Bench); O P Lather v. Satish Kumar Kakkar, (2001) 3 SCC 110 (two-judge Bench) of the expression, is construed to be clarificatory in nature. Against this backdrop, the Commandant was acting within his jurisdiction in ordering an additional RoE to clarify the date of the incident. As we have seen earlier, strictly speaking, this is not a case of insufficient evidence. During the course of the RoE, the respondent himself stood by the complainant‘s version of the date and time on which the alleged incident took place, which was the night when the respondent was detailed to Naka duty as Head Constable. The only issue for which additional RoE was warranted was in regard to the confusion in regard to the precise date on which the incident took place, considering the confusion caused by the incident having occurred on the intervening night of 16 and 17 April 2006. Save and except for this, the RoE which was prepared initially was comprehensive in nature and contained all necessary details of the incident, which were sufficient to sustain the final conclusion.

24 The submission of the respondent that the Commandant has usurped the power of a superior officer or authority under Rule 59 is patently incorrect. Rule 59 provides for the action which has to be taken by a superior authority on receiving the application for convening a court. In that context, Rule 59(1) provides as follows: ―59. Action by a Superior Authority on receiving an application for convening a court.- (1) As soon as a superior officer receives an application for convening a court, he shall scrutinise the charge and the evidence against the accused, where necessary in consultation with the Chief Law Officer or a Law Officer and he:

(i) shall direct the Commandant to dismiss the charge where the evidence against the accused is insufficient and further evidence is not likely to be available and may direct him to do so if he considers it inadvisable to proceed with the trial; or

(ii) may return the case to Commandant for being tried by a

Summary Security Force Court or being dealt with summarily if he considers that the same can be adequately so tried or dealt with; or

(iii) may return the case for recording further evidence, if he considers the evidence recorded insufficient but considers that further evidence may be available; or

(iv) may dispose of the case administratively under chapter

IV of these rules if competent to do so, or refer it to the competent authority for disposal, where he is of the opinion that the charge against a person is serious but the trial by Security Force Court is inexpedient or not reasonably practicable for the reasons to be recorded in writing; or

(v) may, after recording the reasons, dispose of the case administratively under chapter XIV A of these rules if competent to do so, or refer it to the competent authority for disposal, where he is of the opinion that the charge against the officer or the subordinate officer, as the case may be, does not deserve to be dismissed but also not so serious as to warrant trial by a Security Force Court. (2) (a) In any other case he may either himself convene a Court or if he considers that a higher type of Court should be convened and he is not empowered to convene such a Court, forward the case to a higher authority with recommendation that such Court may be convened. (b) The higher authority on receiving the case may exercise any of the powers given in sub-rule (1) of this rule: Provided that a superior officer or higher authority before convening a General Security Force Court or a Petty Security Force Court shall take the advice of the Chief Law Officer or a Law officer. Provided further that the superior authority or higher authority while convening a Court may reframe the charge sheet on which the accused is to be tried.‖ Clause (iii) of sub-rule (1) of Rule 59 indicates that one of the courses of action open to the superior authority is to return the case for recording evidence if the evidentiary record is considered to be insufficient but the superior authority considers that further evidence may be available. The provisions of Rule 59(1)(iii) cannot be stretched to mean that absent the conferment of a specific or express power to the Commandant in similar terms, the Commandant had no jurisdiction to seek clarification or order an additional RoE. The power of the Commandant to do so is implicit, as noticed earlier in Rules 48 and 51, read with Rule 6. Hence, it cannot be postulated that by ordering an additional RoE, the Commandant had usurped the power of a superior authority or acted contrary to the jurisdiction conferred upon him. C.[2] Recording of reasons 25 The second ground on which the Division Bench of the High Court held the findings of the SSFC to be vitiated is that under Rule 148, the SSFC was required to furnish at least ―a modicum of reasons‖. Rules 148 and 149 provide as follows: ―148. Verdict.- The Court shall after the evidence for prosecution and defence has been heard, give its opinion as to whether the accused is guilty or not guilty of the charge or charges.

149. Finding.- (1) The finding on every charge upon which the accused is arraigned shall be recorded and except as mentioned in these rules shall be recorded simply as a finding of “Guilty” or of “Not Guilty”. (2) When the Court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the Court shall find the accused ―Not Guilty‖ of that charge. (3) When the Court is of opinion as regards any charge that the facts found to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, it may, instead of a finding of ―Not Guilty‖ record a special finding.

(4) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein. (5) The Court shall not find the accused guilty on more than one of two or more charges laid in the alternative, even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges.‖ The provisions of Rule 149 of the BSF Rules 1969 came up for interpretation before a two-judge Bench of this Court in Union of India v. Dinesh Kumar14. This Court was considering over sixty-two appeals from members of the BSF on the sole ground that orders of the SSFC were illegal since they did not state the reasons for arriving at their conclusion. Speaking on behalf of this Court, Justice V S Sirpurkar framed the issues for consideration as follows: