Siddharth Diwan v. Union of India and Ors.

1. Vide the present petition, the petitioner is seeking quashing and/or setting aside of the impugned orders dated 04.10.2022 and 03.11.2022 passed by the respondents whereby he was placed under suspension; directions to the respondents to revoke his suspension; directions to the respondents to treat the suspension period of the petitioner as spent on duty and thereby to pay full pay and allowance of the said period to the petitioner.

2. Admittedly, the case was registered against the petitioner for alleged offences under IPC and PC Act, 1988 allegedly committed by him at Composite Hospital, BSF, Jodhpur while working as a member of a medical board, detailed for Review Medical Examination for recruitment for 15:17 Constable (GD) 2018 in CAPFs. The FIR relates to demanding and obtaining of bribe from various candidates of review medical examination for the recruitment in lieu of clearing them in the medical examination. The involvement of the officer in corrupt practices came to light during the progress of review medical examination on 10.10.2020. A complaint was lodged on 30.10.2020 with CBI by Ftr H BSF, Jodhpur. CBI after investigation, forwarded its report to BSF with the request for sanction of prosecution of the petitioner for the offences under Section 120-B of IPC and substantive offence under Section 7 and 8 of PC Act, 1988. Sanction was conveyed by the department vide HQ Letter No. C- 14011/118/2021/CC/PERS/BSF/14894-95 dated 08.06.2022.

3. The Special Judge, CBI, Jodhpur vide Letter No. 74 of 08.08.2022 informed the DIG (Med) CH BSF, Agartala, Tripura that the notice was issued to the petitioner by Shri. Rajender Kumar, Inspector of Police, CBI/ACB who presented the charge-sheet in the Court on 08.08.2022. The petitioner appeared in the Court and after the hearing of the case, the Court sent the petitioner, Commandant, Spl. Gde-1, CH BSF Agartala to judicial custody till 22.08.2022.

4. Learned counsel for the petitioner submits that as per Rule 40 A (2)

(I) of the Border Security Rules, 1969, if an Officer remains under custody for a period exceeding 48 hours only then the said Officer can be put under suspension. The said rule is reproduced hereinunder: “A member of the Force shall be deemed to have been placed under suspension by an order of the appointing authority

(i) with effect from the date of his detention by civil police on criminal charge or otherwise for a period exceeding 48 hours or

(ii) with effect from the date of his conviction by a Civil Court on a criminal charge, if the sentence awarded is imprisonment for a term 15:17 exceeding 48 hours.”

5. Admittedly, the petitioner appeared before the CBI Court, Jodhpur on 08.08.2022 and he was sent to judicial custody, however, released on bail on 08.09.2022. The case of petitioner is that he has never been arrested by any civil Police, rather was sent to the judicial custody by the orders of the Court.

6. The petitioner has been in judicial custody from 08.08.2022 to 08.09.2022 on which date he was granted bail. The petitioner was detained in custody for more than 48 hours and in terms of the Rule 40 A (2I) of Border Security Rules, 1969 he has been deemed to have been blamed under Suspension for the aforesaid reason.

7. The criminal jurisprudence is that once a person has surrendered to the Court custody, that is considered deemed arrest and he shall remain in the custody of the Court, till further orders of the Court.

8. No case is made out by the petitioner who is under suspension from 04.10.2022 which is further extended vide order dated 03.11.2022 till 04.05.2023. At this stage, we find no merit in the present petition and the same is, accordingly, dismissed.

9. Pending application also stands disposed of.

(SURESH KUMAR KAIT) JUDGE (NEENA BANSAL KRISHNA)

JUDGE DECEMBER 5, 2022/rk/pa 15:17