Supreme Court: In twin appeals challenging judgment and order passed by Delhi High Court in Jogeswar Swain v. Union of India, 2013 SCC OnLine Del 754 setting aside the respondent’s dismissal and directing his entitlement to full consequential benefits except salary to the extent of 50%, and another order dated 22-11-2013 dismissing review petition of the said judgment, the Division Bench of JB Pardiwala and Manoj Misra*, JJ. upheld the High Court’s decision while explaining the importance of strict adherence with Rule 142(2) of BSF Rules, 1969.
The respondent in the instant matter, the original petitioner, was a Constable (General Duty) in the Border Security Force (‘BSF’). The case was based on the allegations that while being posted as a security aide to a lady doctor, he clicked her pictures on 17-06-2005 while she was bathing. When the matter was reported to the Chief Medical Officer, the BSF authorities investigated the matter and put the respondent under open arrest. During investigation, a camera was recovered from neighbouring residential quarter. Consequently, proceedings were initiated against the respondent under the orders of the Battalion Commandant for committing an act prejudicial to the good order and discipline of BSF for offence under Section 40 of Border Security Force Act, 1968 (‘BSF Act’). On completion of record of evidence, the Commandant remanded the respondent for trial by a Summary Security Force Court (‘SSFC’) wherein the respondent was stated to have pleaded guilty and hence, SSFC dismissed him from service.
Aggrieved by dismissal, the respondent filed an appeal under Section 117 of BSF Act and refuted the allegations of clicking those pictures and claimed further gaps denying his confession. Alternatively, he pleaded that even if he was found guilty, his 11 years of duties without any complaint be considered along with his older parents and dependence of family on him. The said appeal was dismissed by Director General of BSF, New Delhi, and the letter communicating such dismissal recited SSFC’s decision of holding him guilty and his dismissal as justified. The High Cour vitiated the proceedings before SSFC and also highlighted procedural gaps while allowing the appeal and setting aside respondent’s dismissal.
In the review petition against the said decision of High Court, it was claimed that there was infraction of Rules 60 and 61 of the BSF Rules, 1969 were erroneous, which were attracted only if trial was conducted by a ‘General’ or a ‘Petty’ Security Force Court, while the respondent was tried by ‘Summary’ Security Force Court as per Section 70 of BSF Act. In response, the High Court recalled its observations regarding infraction of Rules 60 and 61 of the BSF Rules, 1969 during conduct of proceedings but rejected the review petition. The same was challenged by Union of India and BSF Administration in the instant appeal.
Court’s Analysis of BSF Act, Rules and SSFC Proceedings
The Court perused the relevant provisions with respect to a ‘Security Force Court’, including Sections 2(u), 48, 64, 70, 87, 141 of BSF Act, 1968 and Chapter VII, Rule 43, 45, 49, Appendices IV and VI of BSF Rules, 1969. The Court scrutinised Rule 48 in detail which deals with preparation of record of evidence. The Court specifically highlighted the provision which cautioned whatever the accused stated was to be taken down in writing and may be used in evidence.
The Court perused the materials on record and pointed out that the respondent was placed under open arrest on 20-06-2005 and the Commandant of 128 Battalion BSF issued an order for recording of evidence on 21-06-2005. During the course of recording of evidence, last witness statement was recorded on 29-06-2005 and the same day, the respondent was asked to give his statement. While noting the respondent’s claim that he was not provided with the abstract of evidence nor 24-hour time for reflection, the Court found substance in the said submission.
While noting the fact that the Commandant remanded the respondent for trial by an SSFC as per Rule 45(2)(iv) of BSF Rules, the Court said that in such circumstances, the trial had to proceed as per Chapter XI of BSF Rules, and that any statement recorded during investigation or preparation of record of evidence could be used as a previous statement of witness for the purpose of cross-examination of witness as and when he was examined before SSFC. The Court backed such explanation by Section 87 of BSF Act applying general rules of evidence as per Evidence Act, 1872 to all the proceedings before SSFC.
The Court perused the proceedings conducted before the SSFC regarding plea of guilty and expressed that “the minutes of the proceedings reflect that after the defense was closed, the Court’s verdict came” wherein he was held guilty of charge even after considering the fact that there was no previous criminal record. It further pointed out that the minutes of proceedings before SSFC which was not signed by the respondent but only by the Commandant 128 Battalion BSF.
The Court stated that “A plain reading of sub-rule (2) of Rule 142 would indicate that on the accused pleading guilty, before a finding of “Guilty” is recorded, the SSFC is not only required to ascertain whether the accused understands the nature and meaning of the charge to which he has pleaded guilty but it must also inform the accused of the general effect of that plea and of the difference in procedure which will be made by the plea of guilty. That apart, even if the accused pleads guilty, if it appears from the record or abstract of evidence or otherwise that the accused ought to plead not guilty, the SSFC is required to advise him to withdraw that plea.” The Court explained that strict adherence with Rule 142(2) was important before accepting plea of guilty because:
It ensures that before pleading guilty the accused is aware of not only the nature and meaning of the charge which he has to face but also the broad consequences that he may have to suffer once he pleads guilty.
It ensures that confessions do not become an easy way out for deciding cases where marshalling of evidence to prove the charge becomes difficult.
The Court noted that the minutes of SSFC were a verbatim reproduction of statutory rule and not an indication of how the accused was explained about the consequences of pleading guilty, which was not complying with Rule 142(2) of BSF Rules, 1969. Therefore, the Court refused to accept the minutes of proceedings due to non-compliance with requisite provisions and lacking respondent’s signature. The Court expressed that “Absence of signature of the accused in this case assumes importance because here the accused denies taking such a plea and looking at the available evidence, pleading guilty appears to be an unnatural conduct.”
The Court recapitulated the facts while noting that there was no eyewitness, reel not developed and said that “when there was a challenge to the making of such confession before the High Court, a very heavy burden lay on the non-petitioners (appellants herein) to satisfy the conscience of the Court that the plea of guilty was recorded after due compliance of the procedure prescribed by the BSF Rules, 1969.” It further highlighted that no evidence was led to indicate that the camera belonged to the respondent, no one saw him clicking photographs, but the lady doctor only suspected him.
The Court found the High Court justified for meticulously examining the record of evidence to conclude that there was no worthwhile evidence for culpability. The Court further noted the fact that the respondent’s confession was recorded on the same day when the last witness was recorded, without giving him the required 24 hours’ time for reflection. The Court found the High Court justified even for not re-opening the proceeding. The Court did not find it to be a fit case for interference under Article 136 of Constitution of India and dismissed the appeals.
[Union of India v. Jogeshwar Swain, 2023 SCC OnLine SC 1136, decided on 5-09-2023]
Judgment authored by: Justice Manoj Misra
Advocates who appeared in this case :
For Appellants: Additional Solicitor General K M Nataraj, Senior Advocate R Bala, Advocate Rajat Nair, Advocate Swati Ghildiyal, Advocate Vinayak Sharma, Advocate Vishnu Shankar Jain, Advocate on Record Arvind Kumar Sharma
For Respondent: Senior Advocate Yasobanta Das, Advocate on Record Kedar Nath Tripathy