Rakesh Babu v. Union of India & Ors.

2012. The Court believes the statement of X (PW-16) and his father (PW-

15) that the Date of Birth of X is 21.10.2010. The Court also believes the correctness of Date of Birth Certificate, issued by Nagar Nigam, Bareilly, Govt of UP mentioning the date of Birth of X as 21.10.2010. The Court also believes the correctness of Bonafide Certificate issued by present school of X i.e. KV Rajouri, the details mention in school Admission Register of last school attended i.e. KV Rajouri that DOB of X is 21.10.2010. The Court also believes the finding of medical board which examined X on 9th July 2021, who on the basis of bone ossification test, conclude that age of X is above 10 years and below 12 years. The defence does not contradiction these evidence regarding the DOB and age of X. Considering above evidence, the Court takes this issue proved that on the date of incident i.e 8th July' 2021, the age of X was below 12 years. Hence, the Court takes it proved the act of accused is covered U/S 5 (m) of POCSO Act, 2012. The Court also takes the issue that accused was public servant covered under the definition of Sec 21 (twelfth) as there is no dispute between the prosecution and defence that on the date incident on 8th July 2021, the accused was appointed under and at the pay of Border security Force (BSF), a central government agency. There is admission of this fact by the accused in his statement on oath and also in reply to question asked by the Court under BSF Rule 93(2). Hence, the Court takes this issue proved that act of penetration sexual assault by the accused on X at about 1845 hrs, on 8th July 2021 is covered under Sec 5 (c) of the POCSO Act, 2012. Hence, the Court takes the first charge of the charge sheet proved beyond reasonable doubt.

SECOND CHARGE FIRST ISSUE OF THE SECOND CHARGE That the accused and X at about 1845 hrs on 8th July 2021, were present in Q/No. 14/Type I (Ftr SOs Transit Mess). As the first issue of the second charge is identical to the first issue of the first charge. Since, the Court after due deliberation on the evidence available, have already take this issue proved, the court without repeating the evidence, takes the first issue of the second charge proved and moves to the second issue of the second charge.

SECOND ISSUE OF THE SECOND CHARGE That the accused at about 1845 hrs on 8th July' 2021 at Q/NO. 14/Type-l (Ftr SO's Transit Mess), had voluntarily penetrated his penis into the anus of the X. The Court while deliberating upon the second issue of first charge finds second issue of the second charge is identical to the second issue of the first charge except that here there is no mandatory presumption acting against the accused and the prosecution is also required to prove that the act of the accused was voluntarily. The Court believes the evidence of victim child X (PW-16), whose statement is corroborated by medical evidence and by the evidence of PW-1, PW-2, PW-9 and PW-15 that accused had forcefully taken that accused inside his quarter and there removed the pant of X and applied oil on his back and penetrated his penis into the anus of X. The defence did not produce any evidence in rebuttal that the act of accused, penetrating his penis into the anus of the X was not voluntary whereas the accused in his evidence have outrightly denied to have committed any such act of penetrative sexual assault against X and also denied his presence at his quarter at given time. The Court has also found material consistency in the evidence of victim child X on this issue, supported by the medical evidence but there are material contradictions in the statement of accused, given at different stages of this case. The evidence of X is corroborated by the evidence by PW-1, PW-2, PW-9, PW-12 and PW-15. After due deliberation, the Court has no hesitation to believe that prosecution has proved beyond reasonable doubt that accused had voluntarily penetrated his penis into the anus of X. Hence, the Court takes the second issue of the second charge proved and the Court moves to last issue of the second charge.

THIRD ISSUE OF THE SECOND CHARGE It is in the personal knowledge of the court being a mature man that the nature recognizes that the penile-vaginal intercourse is only intercourse which is in order of nature and all other mode like anal sex, oral sex etc are against the order of the nature. The Court has no hesitation in accepting that the canal intercourse by accused by penetrating his penis into the anus of X is against the order of the nature as it does not result into procreation, hence it is unnatural. Considering this, the Court takes the last issue of the second charge proved beyond reasonable doubt. Hence, the Court takes the second charge of the chargesheet proved.

THIRD CHARGE FIRST ISSUE OF THE THIRD CHARGE That 8th July, 2021, at about 1845 hrs, the accused confined X in Q/No. 14/Type-l, (Ftr SO's Transit Mess). The Court believes the statement of the victim child X (PW-16) that on 8th July 2021 at about 1845 hrs, he was going to civil grocery shop near Morcha No. - 4 to buy match box. While, he was passing in front of the accused's quarter at Q/No. 14/Type-l (Ftr SO's Transit Mess) he was called by the accused, who was standing in front of his quarter in towel. Since, he knew the accused, he went to him. The accused by putting his arms on his shoulder around his neck, talking take him upto Ftr Vet Hospital and there he smooched X on his lips and cheeks. Then, the accused pick up a knife from the window of the Vet Hospital and threatened him to come to his quarter. When the X denied to come up with him, he shows the knife and said that he has not kept this knife just to show off. X got frightened and the accused forcefully took the X to his quarter and latched the door from the inside and did not allow him to move from there. The statement of X is also corroborated by the PW-1, PW-2, PW-9 and PW-15. The Court found material consistency in statement of above prosecution witnesses. Whereas, the accused denied his presence at that time in his quarter but said that at that time he was present in Estt Branch Main Officer of Ftr HQ BSF M&C. Since, there are material contradictions and vital improvements in the statement of the accused which makes his statement highly unreliable. While deliberating in the first issue of the first charge, the Court has already taken it proved that the accused and X was present in Q/No. 14/Type-1 (Ftr SO's Transit Mess). Hence, the Court take this issue proved and moves to the second issue of the third charge.

SECOND ISSUE OF THE THIRD CHARGE That the confinement of X in Q/No. 14/Type-1, (Ftr SO's Transit Mess) by the accused was wrongful. The Court believes the statement of the X (PW-16) that on 8th July 2021 at about 1845 hrs when he was going to civil grocery shop near Morcha No. -4 to buy match box, the accused showing him the knife, took him to his quarter Q/No. 14/Type-I forcefully, against his will. Since, the accused was holding the X tightly around his neck and carrying knife in his hand, X could not run away from there and was dragged by the accused to his quarter and the accused latched the door of his quarter from inside. The statement of X, was is corroborated by the PW-1, PW-2, PW-9 & PW-15. The defence did not produce any evidence to rebut the evidence of the PW-16 and outrightly denied that accused was present there and had taken the X to his quarter. The accused in his statement on oath has stated that at the given time he was present in the Estt Branch, Main Office of Ftr HQ BSF M&C to deposit his clearance for leave as he was proceeding on leave next day, which is contradicted by the statement of defence witnesses themselves. Considering the above evidence, the Court believes that the accused wrongfully confine the X in his quarter No. 14/Type-l (Ftr SO's Transit Mess). Hence the Court takes this issue proved. Hence, the Court takes the third charge of the charge sheet proved beyond reasonable doubt.”

7. Following these findings, the GSFC sentenced the petitioner with Rigorous Imprisonment for 20 years, along with dismissal from service.

8. The petitioner preferred a pre-confirmation petition, which was rejected by the Confirming Authority, who confirmed the findings and sentence imposed by the GSFC.

9. Aggrieved thereby, the petitioner has instituted the present writ petition. Submissions of learned Counsel for the petitioner, and findings thereon

10. Mr. Nityanand Singh, learned counsel for the petitioner, advances only three arguments, candidly acknowledging that, in exercise of our jurisdiction under Article 226 of the Constitution of India, we cannot re-examine evidence.

11. Jurisdiction of the GSFC to try an alleged offence under the POCSO Act 11.[1] The first submission of Mr. Singh is that the GSFC did not have the jurisdiction to decide an offence under the POCSO Act. He has relies for this purpose on Section 3211 of the POCSO Act.

32. Special Public Prosecutors. - (1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act. (2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate. (3) Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 11.[2] Besides the fact that Section 32 of the POCSO Act deals with Special Public Prosecutors, their appointment and their qualifications and is, therefore, entirely irrelevant, the submission is, even otherwise, obviously unsustainable. Section 42A12 of the POCSO Act clearly states that the provisions of the POCSO Act shall be in addition to and not in derogation of any other statute. 11.[3] There exist judicial pronouncements which have opined on the scope and ambit of the expression “in addition to and not in derogation of”. 11.[4] In Secretary, Thirumurugan Cooperative Agricultural Credit Society v M. Lalitha13, the Supreme Court was concerned with Section 3 of the Consumer Protection Act, 1986, which read:

The Supreme Court held, following its earlier decision in Fair Air Engineers (P) Ltd v N.K. Modi14, that it was “clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.” 11.[5] A more direct authority is to be found in KSL And Industries

1974) and provision of that Code shall have effect accordingly. 42-A. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

Ltd v Arihant Threads Ltd15, which was concerned with Section 34(2) of the Recovery of Debts and Bankruptcy Act, 199316, which read: “(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State Financial Corporations Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984), the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) and the Small Industries Development Bank of India Act, 1989 (39 of 1989).” Dealing with the effect of this sub-section the Supreme Court held, in para 37 and 38 of the report, thus:

This enunciation of the law came to be followed, later, by the Supreme Court in Pioneer Urban Land and Infrastructure Ltd v UOI17. 11.[6] Jaspal Singh J., sitting singly as a Judge of this Court also interpreted, with lucidity, the expression “in addition to not in

“the RDDB Act” hereinafter derogation of”, as contained in Section 34(2) of the RDDB Act, thus18: “11. The answer to the question posed above, to my mind, is to be found not in sections 17, 18 and 31 of the Act but in Section 34 and more particularly in its sub-section (2). This is how section 34 runs: *****

12. On reading sub-section (1) along with sub- section (2) what emerges out is that notwithstanding the overriding effect of the provisions of the Act over any other law to the extent of inconsistency in the latter with the provisions of the former, the Acts enumerated in sub-section (2) remain intact. The words: "The provisions of this Act or the rules made there under shall be in addition to and not in derogation of" the Industrial Finance Corporation Act, 1948 are not without significance.

13. The term "in addition to", is synonymous with "also", "moreover", "likewise", or "besides". The term, surely, cannot be construed as meaning "in lieu of" and is rather diametrically opposed to diminution or abatement or abridgment. In other words, what the term "in addition to" signifies is an increase of or accession to, and thus carries out the idea of protecting the reliefs already available under section 30 of the Industrial Finance Corporation Act, 1948. This, I feel, is further fortified by the words "and not in derogation of, the Industrial Finance Corporation Act, 1948."

14. As we all know, the word "derogation" relates to the partial repeal or abolishing of a law, as by a subsequent Act which limits its scope or impairs its utility and force. In other words when we say "in derogation of" we mean, more generally, the act of taking away, or destroying the value or effect of anything, or of limiting its extent, or of restraining its operation. If that be the meaning and purport of the word "derogation", when section 34 uses the words "and not in derogation of the Industrial Finance Corporation Act, 1948", it is clearly conveyed that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 neither limits the scope nor impairs the utility and force of the Industrial Finance Corporation Act, 1948. And, the reason for it is not far to seek. Section 30 of the Industrial Finance Corporation Act, 1948 confers on the Corporation special rights to enable it to recover its dues Industrial Finance Corporation of India v Allied International Products Ltd. and Ors., MANU/DE/1478/1997 promptly and effectively, and without the necessity of resorting to long drawn litigation requiring adjudication by judicial authorities and which may harm the interest of the Corporation, frustrate its rights, block its funds and make it difficult for it to freely invest money.

15. In short, thus, section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 keeps intact the Industrial Finance Corporation Act, 1948 and in no way limits, hinders or impairs the play of its provisions. This being the position, the coming into force of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 has no effect on the pendency of the present proceedings. I hold accordingly.” 11.[7] There can, therefore, be no manner of doubt that, by using the expression “in addition to not in derogation of”, Section 42A of the POCSO Act preserves, intact, the jurisdiction vested in any authority under any other statute to try and offence which is triable under the POCSO Act. 11.[8] The question that arises is, therefore, whether the BSF Act empowers the GSFC to try an offence under the POCSO Act. 11.[9] On a reading of the BSF Act, the answer, quite clearly, has to be in the affirmative.

11.10 Section 7219 of the BSF Act empowers the GSFC to try any person subject to the BSF Act for any offence punishable thereunder and pass any sentence authorised thereby. “Offence” is defined in Section 2(1)(q)20 of the BSF Act as “any act or omission punishable under this Act” and includes “a civil offence”. “Civil offence” is

72. Powers of a General Security Force Court.—A General Security Force Court shall have the power to try any person subject to this Act for any offence punishable thereunder and to pass any sentence authorised thereby. (q) “offence” means any act or omission punishable under this Act and includes a civil offence; defined in Section 2(1)(d)21 as an offence triable by a Criminal Court. In other words, every offence triable by a criminal Court is ipso facto a “civil offence” for the purposes of the BSF Act; it would therefore be an “offence” as defined in Section 2(1)(q) of the Act and, consequently, a GSFC would have the jurisdiction to try any person who alleged to have committed such an offence.

11.11 Clearly, therefore, the BSF Act empowers the GSFC to try offences under the POCSO Act. These provisions, seen in conjunction with Section 42A of the POCSO Act, which saves the jurisdiction vested in other authorities under other statutes, defeats Mr. Singh’s contention that the GSFC did not have the jurisdiction to try a POCSO offence.

11.12 Section 32 of the POCSO Act has no application at all as it deals with qualifications of Special Public Prosecutors.

12. Re. procedure followed by the GSFC 12.[1] The second submission of Mr. Singh is that the petitioner was not given certified copies of the statements of the PWs and was also only allowed to inspect the file. 12.[2] This, too, cannot constitute a legitimate basis to challenge the decision of the GSFC in view of Rule 12022 of the BSF Rules, which (d) “civil offence” means an offence which is triable by a criminal court;

120. Custody and Inspection of Proceedings.—The proceedings shall be deemed to be in the custody of the Law Officer (if any) or, if there is none, of the presiding officer but may, with proper precaution for their safety, be inspected by the members of the Court, the prosecutor and accused, at all reasonable times before the Court is closed to consider the finding. only permits inspection of the records of the proceedings during the trial. The entitlement to certified copies as per Rule 12923 of the BSF Rules is only after the trial has concluded. 12.[3] Mr. Singh submits in this context that a learned Single Judge of the High Court of Jammu & Kashmir has in Rovinder Singh v UOI24, declared Rule 129 of the BSF Rule to be unconstitutional. However, he fairly acknowledges that the said order stands stayed by a Division Bench in LPA. 12.[4] Moreover, unlike the position in Rovinder Singh, the petitioner has not assailed the vires or validity of Rule 129 of the BSF Rules. 12.[5] In that view of the matter, we cannot find any fault with the GSFC in not allowing the petitioner certified copies of the statements of the PWs during trial. 12.[6] Even otherwise, if the petitioner was allowed to inspect the copies of the said PWs, we do not feel that any prejudice can be said to have resulted as a consequence of the petitioner not having been provided certified copies. 12.[7] In that view of the matter, Mr. Singh’s second contention, predicated on the omission to provide certified copies of the statements of the PWs to his client is also without substance.

129. Right of person tried to Copies of Proceedings.—Every person tried by a Security Force Court shall be entitled to obtain on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required and before the proceedings are destroyed, from the Chief Law Officer a copy thereof, including the proceedings upon revision, if any. AIR 2022 J&K 105

13. Re. plea that GSFC decision is unreasoned 13.[1] The third submission of Mr. Singh is that the GSFC’s decision is unreasoned. We have reproduced the relevant portion of the decision of the GSFC hereinabove and, from a bare reading thereof, it is clear that the GSFC has provided cogent and convincing reasons in arriving at its finding. 13.[2] Mr Singh’s submission that the GSFC decision is unreasoned is, therefore, also rejected.

14. Inconsistencies in X’s statement 14.[1] Mr Singh also advanced a faint contention that there were inconsistencies in the statement of X. However, Ms. Dubey refers, in response, to Ramani v State of Madhya Pradesh25 in which it has been held that minor inconsistencies would not vitiate the case of the prosecution. She has also relied on Section 2926 of the POSCO Act which engrafts a presumption of guilt against the accused unless proved otherwise. We find the reliance, by Ms Dubey, on Section 29 of the POCSO Act to be well taken. 14.[2] In the present case, we are in agreement with Ms. Dubey that the various statements of the victim are cogent and convincing and,

29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be therefore, if the GSFC chose to rely on the said statements read with the available corroborating evidence in holding the petitioner to be guilty of the offence alleged against him, we do not find any perversity or illegality in the said finding.

15. Scope of judicial review 15.[1] Besides, as Ms. Dubey points out, this Court does not sit in appeal over the decision of the GSFC, and exercises only certiorari jurisdiction. The parameters of certiorari jurisdiction can thus be delineated in Syed Yakoob v K.S. Radhakrishnan27:

unless the contrary is proved. AIR 1964 SC 477 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 Ishaque28, Nagandra Nath Bora v Commissioner of Hills Division and Appeals Assam29 and Kaushalya Devi v Bachittar Singh30.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. (1955) 1 SCR 1104 (1958) SCR 1240 AIR 1960 SC 1168 Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.” (Emphasis supplied) 15.[2] Division Benches of this Court have also spoken on the issue. In Kailash Chand Dig v UOI31, a Division Bench, of which one of us (C. Hari Shankar J.) was a member, has held:

15.[3] Similar views stand expressed by this Bench in Sheelendra Kumar v UOI32 and Kiran Kumar v UOI33 and by a coordinate Division Bench in SI/Steno Digamber Singh v UOI34. Conclusion

16. We, therefore, find no occasion to interfere with the impugned decision of the GSFC, which accordingly stands affirmed in its entirety.

17. The writ petition is therefore dismissed.

C. HARI SHANKAR, J.

OM PRAKASH SHUKLA, J. AUGUST 28, 2025