The involvement of a prosecution witness as the "friend of the accused" in a disciplinary proceeding violates the principles of natural justice and renders the proceedings invalid.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ application has been filed, inter alia, challenging the charge sheet dated 27th April, 2005, as well as the Summary Security Force Court (in short, SSFC) proceeding dated 29th April, 2005, dismissing the petitioner from service, and the order dated 17th April, 2006, passed by the Appellate Authority.

2. The petitioner claims to have joined the post of a constable in the Border Security Force (in short, BSF) in the year 1989. At the relevant point of time, when he was posted at Border outpost of Soldighi under B-Company, 138 Battalion, BSF, he was served with a charge sheet dated 7th April, 2005. Particulars of the charges leveled against the petitioner is extracted hereinbelow:

“FIRST CHARGE

BSF Act 1968, Section 40 : AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

in that he,

at BOP Soldighi on 06 April 2005 at about 0015 hrs improperly and without authority fired three rounds in Air from his Rifle 5.56mm bearing Butt No. 125, Registration No. 167385274 without regard to the safety of fellow BOP personnel.

SECOND CHARGE

BSF Act 1968, Section 26 : INTOXICATION

in that he,

at BOP Soldighi on 06 April 2005 at about 0025 hrs was found in a state of intoxication.”

3. Following the aforesaid, in terms of Rule 45 of the Border Security Force Rules, 1969 (hereinafter referred to as the “said Rules”), the Commandant while hearing out the charges, had examined witness, and the witness action was recorded. After the recording of evidence, by a communication dated 27th April, 2005, the Commandant instead of deciding on the charges himself, having though it fit in terms of Rule 45(2)(iv) to remand the petitioner for trial by the SSFC, while informing him that trial shall be held by the SSFC under Rule 51 of the said Rules on 29th April, 2005, forwarded the record of evidence to him, including the exhibits along with a copy of the charge sheet for preparation of his defence. The petitioner was also granted liberty to choose any BSF personnel available in the unit to act as a “friend of the accused” during the trial and that such choice was required to be made positively, by 1800 hrs. on 28th April, 2005.

4. The petitioner contends that along with the aforesaid communication, apart from the record of the evidence, the petitioner was also served with a charge sheet under Rule 53 of the said Rules, which included an additional charge, not forming part of the previous charge sheet. The petitioner contends that a new charge in the form of the second charge was incorporated in the charge sheet and the same surfaced for the first time in the communication dated 27th April, 2005. Following the aforesaid, the petitioner despite applying for postponement of hearing so as to enable him to prepare for the additional charge, the proceeding, however, continued as usual. The petitioner had participated in the SSFC trial and on the basis of his admission which, according to the petitioner, was obtained through and at the instance of Aniruddha Sen, who had been appointed as the friend of the accused, he was handed over a sentence of dismissal from service. Challenging the aforesaid order including the sentence dated 29th April, 2005, the petitioner had preferred a statutory appeal under Section 117 of the Border Security Force Act (hereinafter referred to as the “said Act”).

5. Mr. Datta, learned advocate for the petitioner, by placing reliance on the aforesaid appeal submits that the petitioner had duly brought to the notice of the Appellate Authority that Aniruddha Sen had forced the petitioner to plead guilty at the time of trial. He had also brought to the notice of the Appellate Authority that he had not pleaded guilty before the recording officer in connection with the proceedings under Rule 48 of the said Rules and had also cross-examined the aforesaid witnesses. He also had raised the issue of the charge sheet being amended and a fresh charge being incorporated, which could not have been done a