The court affirmed that distinct charges allow for separate trials under the Sashastra Seema Bal Act, and the DIG had the authority to annul previous proceedings based on the gravity of the offence.

JUDGMENT :

Joymalya Bagchi, J.

1. Appeal is directed against judgment and order dated 30.01.2024 passed by the Hon’ble Single Judge dismissing the prayer to set aside the order of the appellate authority dated 01.01.2021 upholding the decision and finding of the Summary Force Court (for short SFC) wherein the appellant was found guilty under Sections 43 and 44(c) of the Sashastra Seema Bal, 2007 (hereinafter referred to as the Act) and awarded punishment of dismissal of service under Section 51(1)(c) of the Act.

Factual matrix:-

2. The factual matrix giving rise to the appeal are as follows:-

3. On 13.07.2018 appellant was performing sentry duty at RP Gate I between 6.00 hours to 9.00 hours. At 8.55 hours he was seen using his mobile phone and duty JCO, ASI G. D. Partha Bhattachharjee seized the said phone as the appellant was using it during duty hours in contravention of the extant orders and directions. At that stage, there was an altercation and appellant cocked his rifle.

4. In view of the aforesaid accusation, appellant was placed on suspension. A court of enquiry was ordered by the Commandant vide convening order dated 17.07.2018 to investigate into the circumstances under which the appellant had cocked his service rifle while performing sentry duty. Pursuant to the court of enquiry, Commandant vide order dated 03.10.2018 directed record of evidence (ROE) in accordance with relevant rules.

5. After perusing the ROE and giving an opportunity of hearing to the appellant, the Commandant referred the case for SFC under Rule 135 of the said Act. In the SFC, appellant was charged under Section 22 of the Act which reads as follows:-

“While No.12066889 CT(GD) Rajeev Kumar Hembrom of 41st Bn. SSB, Ranidanga while performing sentry duty at RP Gate -1 on 13/07/2018, cocked his personal rifle after his mobile was seized by duty JCO ASI(GD) Partha Bhattacharjee as the said CT/GD was found using the same during duty hour.”

6. SFC found the appellant guilty of the aforesaid charge and sentenced him to suffer imprisonment for 40 days in force custody vide order dated 11.02.2019. The order was duly promulgated and appellant served the aforesaid sentence.

7. On 14.02.2020, the Deputy Inspector General upon analysis of the evidence on record annulled the SFC proceeding holding the same as illegal on the premise that the punishment awarded was not commensurate with the gravity of the offence and the evidence on record.

8. In view of the aforesaid annulment, the Commandant obtained legal opinion from the Deputy Judge, Attorney General and the latter opined “Bn to take action as per direction of DIG, SHJQ Ranidanga and must complete proceeding immediately.”

9. Pursuant thereto, by order dated 04.05.2020 the Commandant cancelled the punishment for imprisonment in force custody for 40 days awarded to the appellant and directed the said period shall be treated as duty for all purposes. Thereafter, by a convening order dated 06.06.2020 another SFC was convened to try the appellant for the charges under Sections 44(c) and 43 of the Act which read as follows:-

“Regt. No. 120666889, UIN – 15020804 CT (GD) Rajeev Kumar Hembrom of 41st Bn. SSB, Ranidanga while performing sentry duty at RP Gate No.1 on 13.07.2018 from 0600 Hrs to 0900 Hrs and 0855 Hrs he tried to commit suicide by cocking his personal rifle INSAS Butt No. 421 bearing No. 18002242 when his mobile was seized by ASI (GD) Partha Bhattacharjee, Duty SO as he was usin