The court held that the difference in punishment was not discriminatory as the SSFC had taken into account the previous convictions of the petitioner, while the co-accused had no previous convictions.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ application has been filed, inter alia, challenging the order dated 25th June, 2008 passed by the Summary Security Force Court (hereinafter referred to as the “SSFC”) including the sentence of dismissal of the petitioner from service, and the order passed by the Appellate Authority dated 15th January, 2009.

2. The petitioner claims to have joined the Border Security Force on 28th February, 2002 in the “D” Company of 108 of the Border Security Force (hereinafter referred to as the “BSF”) and was posted at BSF, Chapghoti, Malda, when a charge-sheet dated 8th May, 2008 was issued by the Commandant in terms of Appendix VI, Rule 53(2) of the Border Security Force Rules, 1969 (hereinafter referred to as the “said Rules”) and served on the petitioner.

3. The charge-sheet, inter alia, was not only served on the petitioner but also against one Gyani Ram who was a co-accused. Both the said Gyani Ram and the petitioner were tried by the SSFC, in a summary trial. After conclusion of the trial by an order dated 25th June, 2008, both Gyani Ram as also the petitioner were held guilty in respect of second charge, however, in respect of the first charge both were held not guilty.

4. Notwithstanding, both the accused being held guilty only in respect of the second charge, in case of the said Gyani Ram, he was sentenced to the following punishment;

a) To be reduced to Constable rank

b) to forfeit five years of seniority and service for the purpose of promotion.

c) and also forfeited pay and allowances for a period of one month; while in case of the petitioner he was sentenced to dismissal from service.

5. Being aggrieved, the petitioner preferred a statutory appeal within the meaning of Section 117(2) of the Border Security Force Act, 1968 (hereinafter referred to as the “said Act”), before the Director General, BSF. By an order dated 15th January, 2009, the Director General, BSF, as an Appellate Authority taking into consideration all aspects of the matter was, inter alia, pleased to reject the said appeal.

6. Challenging the aforesaid orders, the present writ application has been filed.

7. Mr. Basu, learned advocate representing the petitioner, submits that notwithstanding both Gyani Ram and the petitioner being charged with the same offence and notwithstanding both being held guilty, only in respect of second charge, two different sentences have been awarded, to the two different accused. This, according to the petitioner is a discrimination meted out to him and is violative of Article 14 of the Constitution of India.

8. Mr. Basu then contends that the order of the SSFC holding the petitioner guilty is perverse and based on no evidence. By drawing attention of this Court to the records of the proceeding, inter alia, including the evidence of the petitioner, he submits that the petitioner’s evidence was taken by compelling him to accept the guilt. According to Mr. Basu, the SSFC could not have acted on the basis of the confession of the petitioner, since, the said confession was not free or voluntary and did not constitute a confession within the meaning of Section 24 of the Indian Evidence Act, 1872.

9. The informant was not examined and finding reached by the SSFC was based on hearsay. There was no eyewitness of the incident complained of and that the petitioner has been made a victim of circumstances. Reliance has been placed on the provisions of Section 14 to Section 18 of the Indian Contract Act, 1872, to, inter alia, demonstrate what would constitute ‘free consent’ and ‘undue influence’.

10. By placing reliance on a judgment delivered by this Court in the case of Robert Xess v. Union of India & Ors., reported in 2011 (4) CHN (Cal.) 176, he submits that unless the informant is examined, the delinquent would lose the valuable right of cross-examining him and would thereby be prejudiced. The Division Bench of this Hon’ble Court in an identical case, while taking note of the failure on the part of th