The sufficiency of evidence, compliance with procedural rules, and the gravity of the offence committed by the petitioner were the central legal points established in the judgment.

JUDGMENT :

M.V. Muralidaran, J.

This writ petition has been filed by the petitioner challenging the order dated 4.6.2021 thereby sentencing the petitioner to suffer imprisonment for five years and to be dismissed from the service, which was upheld by the appellate authority vide order dated 30.11.2021.

2. The case of the petitioner is that he joined BSF at Koraput as trainee on 15.9.2011 and after passing out, resumed his duties at SHQ BSF, Koraput and thereafter, posted at SHQ, BSF, Jalpaiguri as Constable/Fitter. While he was on leave from 27.3.2020, one Kundan Kumar Rana, Head Constable requested the petitioner to allow him to stay and use the family quarters of the petitioner and the petitioner on good faith allowed the Kundan Kumar Rana to use the family quarters. In the month of July, Kundan Kumar Rana, after receiving the Government quarters allotted in his name, shifted his family adjacent to the petitioner’s quarters. After Kundan Kumar Rana shifted, the petitioner found some articles missing from his quarters and, as such, he enquired the same with Kundan Kumar Rana, to which some quarrel had taken place between them and, lastly on 23.11.2020, Kundan Kumar Rana returned all the missing articles to the petitioner. On 20.11.2020, Kundan Kumar Rana lodged a complaint alleging that on 8.11.2020 at around 17.30 hours, the petitioner attempted sexual assault on his minor daughter aged 9 years. In this regard, Court of Inquiry was conducted by the Deputy Commandant, 143 Bn BSF for the alleged complaint on 25.1.2021. Thereafter, Record of Evidence was conducted under Rule 48 of the BSF Rules, 1969 and examined the witness. According to the petitioner, the Recording Officer failed rather once again denied opportunity to the petitioner to call witnesses in his defense and thus violated the provisions of Rule 48(4) of the BSF Rules. The Recording Officer failed to comply with Rule 5(1) of the BSF Rules.

3. The petitioner stated that the prosecution case is based on the lies pedaled by PW1 to PW3 and there are contradictions and highly improbable conjectures far from truth to malign the petitioner due to personal grudge. It cannot be proved by the statement of PW2 that the petitioner was present in the place of occurrence of the alleged incident. On 6.4.2021, a charge sheet was issued against the petitioner stating that the petitioner has committed aggravated sexual assault on a girl child punishable under Section 10 of the POCSO Act, 2012. According to the petitioner, the charge sheet dated 6.4.2021 is sans any authority of law, as the same was issued by the Deputy Inspector General SHQ BSF Jalpaiguri in violation of Rule 53. On 10.5.2021, GSFC assembled and finally vide order dated 4.6.2021, the GSFC found the petitioner guilty of the charges under Section 46 of the BSF Act read with Section 10 of the POCSO Act and awarded him punishment to suffer imprisonment for five years in a civil prison and dismissed him from service.

4. Aggrieved by the said order, the petitioner submitted pre-confirmation petition dated 8.6.2021 to the Inspector General, North Bengal Frontier and another pre-confirmation petition on 10.6.2021 to the Additional DG (EC), BSF, Kolkatta to review the sentence awarded to him vide order dated 4.6.2021. Vide Memo dated 13.10.2021, the IG North Bengal Frontier issued an addendum stating that the confirming authority being ADG, HQ, SDC (EC), BSF, Kolkata has decided to remand the case for revision trial and the same has been fixed with effect from 22.10.2021 at SHQ BSF, Jalpaiguri. On 25.10.2021, the revision GSFC adhered to its previous sentence dated 4.6.2021 and the same was confirmed by ADG (EC), BSF, Kolkatta on 30.11.2021. Challenging the same, the present writ petition is filed.

5. The respondents 1 to 7 filed affidavit-in-opposition stating that during his service tenure in BSF, the petitioner was awarded seven cash rewards/CCs and awarded one punishment on 15.3.2019 for committing an offence under Section 22