1. Dismissal of a security force member for misconduct — Trial by Summary Security Force Court based on a plea of guilty — Challenge to dismissal on procedural grounds. (Para 2 , 20 , 21 , 31 )
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2023 Supreme(SC) 831
SUPREME COURT OF INDIA
J.B. PARDIWALA, MANOJ MISRA, JJ.
Union of India and Others – Appellants
Versus
Jogeshwar Swain – Respondent
Civil Appeal Nos. 8629-8630 of 2014
Decided On : 05-09-2023
Important Points
Strict adherence to procedural safeguards under Rule 142(2) of the BSF Rules, 1969, is mandatory before accepting a plea of guilty. Verbatim reproduction of the rule in proceedings does not constitute compliance; the court must ensure the accused understands the consequences and advise withdrawal if evidence is insufficient.
Subject
Employment Law - Dismissal and Disciplinary Proceedings
Act Referred
BORDER SECURITY FORCE ACT: S.117, S.141(1), S.2(u), S.40, S.48, S.64, S.87
BORDER SECURITY FORCE RULES: R.142, R.45(2)(iv), R.48(3), R.49, R.60, R.61
CONSTITUTION OF INDIA: Art.136
EVIDENCE ACT: S.145, S.60
BORDER SECURITY FORCE RULES: R.142, R.45(2)(iv), R.48(3), R.49, R.60, R.61
CONSTITUTION OF INDIA: Art.136
EVIDENCE ACT: S.145, S.60
Headnote
Dismissal - Border Security Force Act, 1968 - Section 40 - Summary Security Force Court - Rule 142 - Rule 49 - Summary: The court allowed the writ petition, setting aside the punishment of dismissal imposed upon the original petitioner. The High Court found procedural infirmities in the trial proceedings and lack of worthwhile evidence against the original petitioner. The court observed that the plea of guilty was not recorded in compliance with the prescribed procedure and the original petitioner's confession was involuntary. The dismissal based solely on the plea of guilty was found unwarranted and set aside.
Fact of the Case:
The original petitioner, a Constable in the Border Security Force, was dismissed from service for allegedly clicking pictures of a lady doctor while she was taking a bath. The original petitioner refuted the allegations and filed a statutory appeal, which was dismissed. Subsequently, the original petitioner filed a writ petition before the High Court.
Finding of the Court:
The High Court found procedural infirmities in the trial proceedings, including the composition of the Summary Security Force Court and the recording of evidence. It also found that there was no worthwhile evidence against the original petitioner. The High Court allowed the writ petition, setting aside the punishment of dismissal imposed upon the original petitioner.
Issues: Procedural infirmities in trial proceedings, lack of worthwhile evidence against the original petitioner, and the involuntary nature of the original petitioner's confession.
Ratio Decidendi: The dismissal based solely on the plea of guilty was found unwarranted and set aside due to procedural infirmities and lack of worthwhile evidence against the original petitioner. The plea of guilty was not recorded in compliance with the prescribed procedure, and the original petitioner's confession was found to be involuntary.
Final Decision: The appeals were dismissed, upholding the High Court's decision to set aside the punishment of dismissal imposed upon the original petitioner.
Legal Category Hierarchy
- administrative law
- practice and procedure
- constitutional law
Advocates appeared:
For the Appellant(s) : Mr. K M Nataraj, A.S.G. Mr. R Bala, Sr. Adv. Mr. Rajat Nair, Adv. Ms. Swati Ghildiyal, Adv. Mr. Vinayak Sharma, Adv. Mr. Vishnu Shankar Jain, Adv. Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Mr. Yasobanta Das, Sr. Adv. Mr. Kedar Nath Tripathy, AOR
For the Appellant(s) : Mr. K M Nataraj, A.S.G. Mr. R Bala, Sr. Adv. Mr. Rajat Nair, Adv. Ms. Swati Ghildiyal, Adv. Mr. Vinayak Sharma, Adv. Mr. Vishnu Shankar Jain, Adv. Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Mr. Yasobanta Das, Sr. Adv. Mr. Kedar Nath Tripathy, AOR
Table of Contents
2. Validity of dismissal based on a plea of guilty — Alleged procedural infractions in recording evidence and trial — Sufficiency of evidence to support conviction. (Para 14 , 15 , 16 )
3. Non-compliance with mandatory reflection time and failure to explain the consequences of a guilty plea — Lack of corroborative evidence rendering the unsigned confession unreliable. (Para 27 , 28 , 32 , 34 , 35 , 36 , 37 , 38 )
4. Strict adherence to procedural safeguards for recording guilty pleas is mandatory; unsigned confessions unsupported by evidence cannot sustain a dismissal from service. (Para 35 , 36 , 37 )
5. Appeals dismissed — High Court order setting aside the dismissal from service upheld. (Para 39 , 40 )
6. Is a mandatory reflection period required before recording an accused's statement during the preparation of a record of evidence under BSF Rules?
Yes, the proviso to Rule 49(3) of the BSF Rules, 1969, mandates that the accused be given reasonable time, and in no case less than twenty-four hours after receiving the abstract of evidence, to make a statement. (Para 26 , 27 )
7. What are the procedural requirements for a Summary Security Force Court to accept a plea of guilty under Rule 142(2) of the BSF Rules?
The Court must ascertain the accused understands the charge, inform them of the general effect of the plea and the difference in procedure, and advise them to withdraw the plea if evidence suggests they ought to plead not guilty. (Para 33 , 34 , 35 )
8. Does the verbatim reproduction of a statutory rule in the minutes of a proceeding constitute compliance with the requirement to explain the rule to the accused?
No, verbatim reproduction of the statutory rule without indicating how the accused was actually explained the broad consequences of the plea does not constitute compliance with the procedural safeguards. (Para 36 )
9. Can a dismissal from service be sustained solely on an unsigned plea of guilty when there is no other corroborative evidence?
No, where the plea of guilty is unsigned, procedural safeguards are not met, and there is no worthwhile evidence to support the charge, the confession is unreliable and cannot justify dismissal. (Para 32 , 37 , 38 )
JUDGMENT :
MANOJ MISRA, J.
1. These appeals are directed against the judgment and order of the High Court of Delhi at New Delhi (in short “the High Court”) dated 21.02.2013, by which W.P. (C) No. 17430 of 2006 filed by the respondent (the original petitioner) was allowed, the punishment of dismissal imposed upon the original petitioner was set aside and a direction was issued that the original petitioner would be entitled to full consequential benefits except salary to the extent of 50%. The appellants have also challenged the order of the High Court dated 22.11.2013, by which the review petition of the appellants seeking a review of the order dated 21.02.2013 was dismissed, though certain observations made in the earlier order were recalled.
FACTS
2. The original petitioner/accused (the respondent herein) was a Constable (General Duty) in the Border Security Force (in short “BSF”). The case against him was that while he was posted as a security aide to a lady doctor, on 17.06.2005, at about 7.45 pm, he clicked pictures of that lady doctor while she was taking her bath. The allegations against him were that on the fateful day, the lady doctor requested him to leave her quarter as she were to take a bath; while she was bathing, she noticed through the window of her bathroom two camera flashes; suspecting foul play, she raised an alarm; on her alarm, her mother went out but could find none; later, the matter was reported to the Chief Medical Officer; the BSF authorities investigated the matter and put the original petitioner under open arrest. During investigation a camera was recovered from the residential quarter of another person, who was a neighbour of that lady doctor. Thereafter, under orders of the Battalion Commandant, proceedings were initiated against the original petitioner in respect of commission of an offence under Section 40 of the Border Security Force Act, 1968 (in short “BSF Act 1968”), that is for committing an act prejudicial to the good order and discipline of the Force (BSF), and record of evidence was prepared. On completion of the record of evidence, the Commandant remanded the original petitioner for trial by a Summary Security Force Court (in short “SSFC”). The SSFC held its proceedings on 23rd July, 2005 wherein the original petitioner is stated to have pleaded guilty. Based on that, the SSFC dismissed the original petitioner from service.
3. Aggrieved by his dismissal from service, the original petitioner filed an appeal under Section 117 of the BSF Act, 1968 before the Appellate Authority. In the appeal, the original petitioner refuted the allegations of clicking pictures of the lady doctor while she was taking her bath and claimed that while recording the evidence, the prosecution witnesses were not offered for cross-examination; there was no evidence forthcoming against the original petitioner in the testimony of prosecution witnesses; the reel of the camera allegedly used in commission of the offence was not developed; the statement of PW-9 with regard to concealment of the camera in her house by the original petitioner was contradictory to her previous statement where no such allegation was levelled by her; nothing incriminating was recovered from the possession of the original petitioner; the statement of prosecution witnesses indicated that the original petitioner had denied the allegations levelled against him, therefore, there was no reason for making a confessional statement, hence, the same cannot be the sole basis for the punishment. In the alternative, the original petitioner pleaded that he was a young man, aged 31 years, who had diligently discharged his duties for over 11 years without a complaint, therefore, even if the original petitioner is found guilty, a lenient view be taken by taking into account that he has old parents and a family dependent on him.
4. The aforesaid statutory appeal of the original petitioner was dismissed by the Director General, BSF, New Delhi. The letter communi
