Sarbaj Singh v. Union of India & Ors.

15. It is further argued that respondents claimed in paragraph 17 of their counter-affidavit that the RoE was completed in accordance with Rule 45 of the BSF Rules. However, Respondent 2 admitted in paragraph 19(a) of their order dated 25.01.2023 that no certificate under Rule 45 was provided. Therefore, the certificate that the respondent have purported to file on file with the stamp dated May 18, 2023, is manufactured.

16. The learned Counsel for the petitioner submits that, in terms of the rulebook issued by Eastern Command, BSF, read with the Director General, BSF‟s order dated 11.01.2016, whenever a sexualharassment complaint is filed against a person subject to the BSF Act, the Internal Sexual Harassment Committee must conduct the inquiry strictly in accordance with the procedure prescribed in the BSF Rules.

17. It is submitted that Ashwani Stadium, where the alleged incident occurred, is the petitioner‟s workplace and therefore, the petitioner is subject to the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,. However, despite the alleged incident having taken place at the petitioner‟s workplace, the matter was not referred to the internal sexual harassment committee, and the conciliation proceedings could not take place causing prejudice to the petitioner.

18. Further reliance has been placed on the definition of “aggrieved woman” which states, “in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent”. In light of this definition, it has been contended that the child victim is covered under its ambit and therefore the POSH Act is applicable in present case.

19. It is contended by the counsel for petitioner that Section 27 of Protection of Children from Sexual Offences Act, 2012[8], mandates medical examination of the child irrespective of the contents of the FIR. Further, the learned counsel for the petitioner submits that, in the instant case, no FIR was registered against the petitioner, nor was the victim subjected to any medical examination. It is urged that the omission to conduct a medical examination undermines the prosecution‟s case. “POSH Act” hereinafter “POSCO” hereinafter

20. Further, the GSFC did not consider the statement of PW-8, namely Dr. Suman Sharma who, clearly stated that the petitioner was not called during cross-examination and the report, thereby violating the petitioner‟s right of audi alteram partem. It was highlighted that the petitioner was not afforded an opportunity to cross-examine at the stage of RoE.

21. It is submitted that GFSC had placed reliance on the testimony of the father of the child victim, however, the same is merely hearsay evidence since the alleged incident was narrated to him by his wife and hence, it cannot be relied upon for conviction.

22. It is further submitted that the first person to whom the child victim disclosed the alleged incident was the class 10th student, and subsequently to her mother, and as such, both were vital witnesses to the prosecution‟s case, but neither was cited as witness or examined at any stage of the proceedings. The non-examination casts doubt on the credibility of the prosecution‟s case and invites an adverse inference under Section 114(g) of the Indian Evidence Act, 1872 i.e., Section 119(g) of the Bhartiya Sakshya Adhiniyam, 2023. It is further submitted that there are glaring contradictions in the evidence of witnesses as to the time, place and nature of the alleged incident adversely impacting their credibility and poke holes in the root of the prosecution case.

23. It is submitted that Section 50 of the BSF Act puts a restriction on combining the punishment of dismissal with certain other orders prescribed under Section 48 of the said Act, wherein the punishment of dismissal from service cannot be clubbed with imprisonment. However, in the present case, the petitioner is sentenced to dismissal along with five year of rigorous imprisonment.

24. It was also argued before this Court that the prosecution‟s case is an afterthought and concocted, especially since the father of the minor girl, knowing about the alleged incident sufficiently lodged a very brief complaint leaving out the details of the incident, such as the place, time of incident or name of the petitioner despite knowing the petitioner.

25. Lastly, reliance was placed on Amar Nath Gupta v Union of India,[9] where the Supreme Court suspended the sentence of the petitioner and in Vijay Pal Singh v Union of India10, wherein this Court had suspended the sentence of the petitioner on the ground that the provisions of law and BSF Rules had not been followed during the trial process.

26. Per Contra, Mr. Jitesh Vikram Srivastava, learned Senior Panel Counsel11, submits that the victim was a minor girl studying in a BSF school and came under the purview of the BSF Act and Rules and does not warrant invocation of POSH Act. The matter at hand is not suitable to be referred to an internal sexual harassment committee as per the POSH Act. It is further submitted that, as the petitioner‟s identity and the nature of the offence committed were known, referral SLP No. 427 of 2023 dated 13.01.2023 W.P. (C) No. 15608 of 2022 “SPC” hereinafter to the internal committee was unwarranted.

27. Moreover, it is submitted under the POSH Act, the process must be set in motion by the aggrieved woman herself or her guardian. However, in the instant case the child victim‟s guardians (who are BSF Personnel themselves) consciously opted to lodge a complaint with the BSF authorities. It is submitted that the petitioner has no right to dictate the victim‟s choice of forum for lodging the complaint. Presently, the victim is a minor girl who was a student at the BSF school and not an employed woman in her workplace as envisaged in the POSH Act. It was contended that the petitioner is pressing for recourse to proceedings under POSH Act to settle the matter by way of monetary relief.

28. Further, the learned SPC submits that all requirements mentioned under Rule 45B of BSF Rules, 1969 were complied with by the respondents as on 14.01.2022 by Sh. A.S. Johal, Commandant, and that the certificate to that effect stands duly annexed. It is further submitted that even assuming non-compliance, the question whether of such a deficiency vitiates the proceedings lies with the competent authorities and is not a matter of right. Further, there was procedural compliance with Rule 93(2) after the matter was remanded by the confirming authority.

29. Moreover, as regards the argument of the learned Counsel for the petitioner that the petitioner having been not afforded an opportunity to cross-examine during RoE and as such the same being in violation of Rule 45B(1)(c) is concerned, the learned SPC relies on the judgement of the Apex Court in Union of India v Dev Singh12 to submit that irregularities preceding the initiation of court-martial proceedings do not vitiate the court-martial proceedings if the trial itself was conducted in accordance with law and the opportunity of cross-examination is afforded therein, the relevant extract is mention hereinafter:

30. Furthermore, the learned SPC submits that there is no obligation on the complainant to register an FIR in order for a disciplinary action to be initiated against a BSF personnel since such personnel are not placed on the same footing as an accused civilian. In the instant matter, proceedings were initiated after a complaint was lodged with the BSF authorities, and the petitioner was charged under Section 46 of the BSF Act, registration of an FIR is not required to set the law in motion.

31. Furthermore, the learned SPC submits that non-production, as a prosecution witness, of the female student to whom the child victim first narrated the incident, does not impair the credibility of the prosecution evidence. The same was done in accordance with Rule 86 of the BSF Rules, 1969. It is submitted that the prosecution was given the opportunity to examine the victim herself along with her father and other BSF authorities including the principal of the BSF Senior Secondary School, to whom the complaint was made at the first instance. As far as the examination of the minor student is concerned, it is submitted that she was exempted on the request of her father as her father opined that exposure to the present case may have adverse impacts on her psychologically. It is further pointed out that the defence was given a notice regarding the same and they were at liberty to call the student as a defence witness, an option they did not choose to exercise.

32. Lastly, the learned SPC distinguishes the present case from the judgments cited by the petitioner i.e., Amar Nath Gupta (supra) and Vijay Pal Singh (supra), which have a different quantum of punishment as compared to the petitioner. The imprisonment in the abovementioned cases was not severe, rendering them eligible for suspension of their sentences. Whereas, in the instant matter, the quantum of punishment is five years rigorous imprisonment and the petitioner has only served about 10 months which does not make the petitioner fit for suspension of sentence on merits or on grounds of mercy.

33. Having heard the learned Counsel for both the parties, and upon consideration of the material on record, we are of the view that at the threshold, the scope and extent of interference of this Court under Article 226 of the Constitution of India in trials conducted by the GSFC as per the BSF Act and Rules framed therein must be understood. Recently, this Bench had an occasion to examine the said scope & extent of the same in Prakash chand sharma v Union of India & Ors13. The relevant text for the same is produced

2025:DHC:7429-DB Section 117(2) of the BSF Act, 1968. Therefore, there exists various layers of adjudication and it is only after these layers of confirmation of the findings and sentence are exhausted that the findings become final. Thus, this Court finds that the scope of judicial review in these kinds of cases, becomes severely restricted and can be exercised in exceptional cases only.

27. According to this court, this restricted exercise has to be for the limited purpose of determining as to whether the proceedings of the UGSFC have been conducted in accordance with the requirement of law or as to find out if there had been any violation of the principles of natural justice, while conducting the trial, so as to vitiate the proceedings. The test to be applied by this Court while examining the conduction of Trial is also limited, with a caveat that, even if the findings reached by the GSFC are found to be perverse and/or contrary to, or in violation of, the provisions of the law relevant thereto, this Court is only to interfere when the infraction has resulted, in the failure of justice. The rule being that, if the conclusion or finding be such as no reasonable person would have ever reached, this Court may interfere with the conclusion or the finding.

28. Further, this Court, while exercising its power of judicial review in GSFC orders, does not sit on the findings of a GSFC or on the proceedings of a GSFC as an appellate authority and reappreciate the findings for the purpose of determining if the evidence were sufficient for the conclusion reached. The findings of facts arrived by the GSFC are final in nature as it being the master of the relevance, admissibility or weight of the evidence lead during the Trial. Thus, this Court, while exercising its power of judicial review is reminded of its self-imposed limitation of restrictive intrusion only when the conclusion arrived by GSFC is based on no evidence. Further, neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to these trials. So long as the findings are supported by some legal evidence, the adequacy or reliability of such evidence is not a matter which can be permitted to be canvassed before the High Court in proceeding for a writ under Article 226 of the Constitution, reliance in this regard can be placed on the judgement of State of Andhra Pradesh & Ors. v Chitra Venkata Rao of the Apex Court”.

34. Therefore, it is safe to conclude from the above reading that the scope of judicial review in these types of cases is extremely limited and can only be used in exceptional cases involving violations of the rule of law.

35. As far as the present case is concerned, it is our view that the plea of denial of cross-examination during the RoE under Rule 45B(1)(c) does not, by itself, vitiate the subsequent trial where full opportunity of cross-examination was afforded before GSFC. This also aligns with the submission of the learned SPC who relies on Union of India v Dev Singh (supra), to submit that the irregularities prior to initiation of court-martial proceedings do not vitiate the same if the trial is otherwise lawful and opportunity of cross-examination is awarded. A bare perusal of the record shows that the petitioner crossexamined witnesses during the GSFC trial, satisfying the requirement thereof that was omitted in the preliminary stage, and the same does not taint the trial proceedings, as the trial is done in accordance with law.

36. Moreover, the failure to refer the matter to the internal complaints committee under the POSH Act, 2013, does not, by itself, constitute a gross procedural lapse. Even if the child victim falls within the definition of an “aggrieved woman” under Section 2(a), the complaint mechanism under the POSH Act, 2013, is to be invoked by the choice of the aggrieved woman or her guardians. In the light of the present case, the child victim and her parents made a conscious decision not to refer the matter to the internal sexual harassment committee and instead chose to file a complaint with the BSF authorities, which cannot be faulted with nor it in any manner caused prejudice to the rights of the petitioner.

37. We also do not agree with the contention of learned counsel for the petitioner that Section 50 of the BSF Act puts a restriction on combining the punishment of dismissal with certain others prescribed under Section 48 of the said Act wherein the punishment of dismissal from service under Section 48 (1) (c) cannot be clubbed with imprisonment. A plain reading of both the sections express that the GSFC can lawfully award imprisonment together with dismissal from service. Section 50 allows dismissal to be awarded in addition to any other punishment and then to add any one or more of the punishment specified in clauses (e) to (l). In addition to this, Section 51 even assumes that a person can be sentenced to imprisonment combined with dismissal, which leaves no doubt that there is no such restriction on combining punishment of dismissal with certain other prescribed punishment under section 48 of the act. The above mentioned sections are reproduced below for perusal. “48.(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say:-

(c) dismissal from the service;

50. A sentence of a Security Force Court may award in addition to, or without any one other punishment, the punishment specified in clause (c) of sub-section (1) of section 48, and any one or more of the punishments specified in clauses (e) to (l) (both inclusive) of that sub-section.

51. When on active duty any enrolled person has been sentenced by a Security Force Court to dismissal or to imprisonment whether combined with dismissal or not, the prescribed officer may direct that such person may be retained to serve in the ranks, and such service shall be reckoned as part of his term of imprisonment if any”.

38. As far as the submission of the petitioner is concerned that every prosecution witness in the present case is a hearsay witness, and such hearsay evidence is inadmissible and any conviction resting solely on hearsay evidence is liable to be set aside unless it falls within a well-recognised exception. It is to be noted that the main prosecution witness here is the victim, whose testimony is direct and does not constitute hearsay evidence. Additionally, her father, her school Principal where the incident occurred and other BSF authorities were also examined to corroborate the prosecution‟s case. As to the petitioner‟s contention that there are contradictions regarding material particulars such as time, place, and sequence of events rendering the case unreliable, the material on record does not disclose such glaring inconsistencies warranting the dismissal of the prosecution case altogether. In offences of sexual assault, the consistent position of law is that the testimony of the victim alone can suffice for conviction provided it gains the confidence of the Court and remains materially unshaken and corroboration of the same is not a sine qua non and minor inconsistencies do not erode reliability. The Hon‟ble Apex Court in the case of State of Punjab Vs. Gurmit Singh14, while dealing with the case of rape of a minor, had held that the evidence of the victim of sexual assault is sufficient for conviction and does not require any corroboration unless there are compelling reasons for seeking the same. To the same effect is the judgment of Ganesan v State15, wherein the Supreme Court, while dealing with a case of sexual assault of a minor, held that the sole testimony of the victim, if found worthy of credence and reliable, requires no corroboration and may be sufficient to invite conviction of the accused.

39. Further, this Court cannot be oblivious to the provision of Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), which creates a presumption of guilt against the accused once the foundational facts of the case stand established. A 3- Judge Bench of the Supreme Court in Sambhubhai Raisangbhai Padhiyar v. State of Gujarat16, has held that Section 29 comes into play once such foundational facts are proved. The Hon‟ble Court held as follows:-

40. In the present case, from a perusal of the evidence brought on record, there is no dearth of doubt that the prosecution was successful in establishing the foundational facts of the case, whereas the petitioner neither produced any relevant witness nor anything was brought on record during the cross-examination, which could unsettle or create a dent to the foundation built by the prosecution. Both the child victim (PW-02) and her father (PW-01) have testified against the culpability of the petitioner and their version cannot be doubted. Most of the objections raised by the petitioner are technical in nature and has nothing to do with the quality of evidence, which has come on record against him. Further, this Court finds that the heinous act of sexual harassment of a girl student (who is also a minor) by a sports teacher would figure quite high in the list of offences of grave nature since it has far-reaching consequences, which impact more than just the parties to the proceeding and the said gravity stands multiplied in the case of a disciplined force like the BSF.

41. In our considered view, the present petition is liable to be dismissed as no grounds are made out under Article 226 for interference with the GSFC‟s findings of guilt, sentence or with respect to the findings in the post confirmation petition. The alleged lapses in the ROE under Rule 45B(1)(c) do not vitiate a subsequently lawful GSFC trial where an effective opportunity of crossexamination was afforded to the petitioner. Moreover, the evidence of direct testimony of the victim cannot be displaced by the nonexamination of an additional witness or by immaterial discrepancies.

42. Accordingly, the writ petition stands dismissed. All pending application(s), if any, are also disposed of.

OM PRAKASH SHUKLA, J.

C. HARI SHANKAR, J.

SEPTEMBER 17, 2025