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High Court Of Delhi
NIRMAL LAKRA - Appellant
Versus
UNION OF INDIA - Respondent
Civil Writ 5261 of 2001
Decided On : 09/30/2002
The petitioner, a Constable in the Border Security Force (BSF), was dismissed from service and sentenced to 4 months' rigorous imprisonment by a Summary Security Force Court (SSFC) for leaving his post without orders from his superior officer and crossing over to Bangladesh without authority. The petitioner challenged the legality of the SSFC proceedings, arguing that he was not given a fair trial and that the charges against him were not proved. The High Court quashed the SSFC proceedings and set aside the petitioner's conviction and sentence. The respondents, the Union of India and others, appealed to the Supreme Court.
Fact of the Case:
The petitioner, a Constable in the Border Security Force (BSF), was dismissed from service and sentenced to 4 months' rigorous imprisonment by a Summary Security Force Court (SSFC) for leaving his post without orders from his superior officer and crossing over to Bangladesh without authority. The petitioner challenged the legality of the SSFC proceedings, arguing that he was not given a fair trial and that the charges against him were not proved. The High Court quashed the SSFC proceedings and set aside the petitioner's conviction and sentence. The respondents, the Union of India and others, appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the SSFC proceedings were vitiated by several procedural irregularities, including the failure to assign reasons for the verdict, the failure to examine a key witness, and the failure to provide the petitioner with a copy of the protest note upon which the charges against him were based. The Court also held that the petitioner's second trial by SSFC was barred by Article 20 of the Constitution of India, which prohibits double jeopardy. The Court set aside the impugned order and awarded costs to the petitioner.
Issues: 1. Whether the SSFC proceedings were conducted in a fair and just manner? 2. Whether the petitioner was denied a fair trial? 3. Whether the charges against the petitioner were proved beyond a reasonable doubt? 4. Whether the petitioner's second trial by SSFC was barred by Article 20 of the Constitution of India?
Ratio Decidendi: 1. The Supreme Court held that the SSFC proceedings were vitiated by several procedural irregularities, including the failure to assign reasons for the verdict, the failure to examine a key witness, and the failure to provide the petitioner with a copy of the protest note upon which the charges against him were based. 2. The Court held that the petitioner was denied a fair trial because he was not given an opportunity to cross-examine the key witness and because he was not provided with a copy of the protest note. 3. The Court held that the charges against the petitioner were not proved beyond a reasonable doubt because the prosecution failed to produce any evidence to support the allegation that the petitioner had crossed over to Bangladesh willingly. 4. The Court held that the petitioner's second trial by SSFC was barred by Article 20 of the Constitution of India, which prohibits double jeopardy.
Final Decision: The Supreme Court set aside the impugned order and awarded costs to the petitioner.
( 1 ) THE petitioner in this writ petition questions the legality of the Summary Security Force Court ( hereinafter for the sake of brevity referred to as, ssfc ) wherein by reason of the impugned order he was not only dismissed from his services but was also sentenced to undergo 4 months rigorous imprisonment.
( 2 ) THE basic fact of the matter is not in dispute. The petitioner joined Border Security Force ( hereinafter for the sake of brevity referred to as, bsf ) as a Constable in the year 1980 and was promoted to the post of L/nk. In January, 1999 he was posted at BOP Lalghat at Indo- bangladesh Boarder in 62 Bn BSF, where HC Mohinder singh was the Post Commander. As the festival of Lohri fell on 13. 01. 1999 and certain items were required therefor, he was directed to accompany HC mohinder Singh for patrolling to Barsora along the border on 12. 01. 1999 and to bring certain items for the troops on account of the said festival. However, allegedly while coming back from Barsora, he and hc Mohinder Singh noticed some Bangladeshi intruders carrying wood from India to Bangladesh and on being challenged by them, the intruders started running upon throwing away the same. Allegedly, as he and HC Mohinder singh chased them, about 15-20 Bangladeshi nationals came out from hiding from behind. the bushes and overpowered them; tied them with ropes within the Indian territory; and took them to Bangladesh "bop Tekkar Ghat after blindfolding them. Allegedly, they were kept in captivity at the Bangladesh BOP for the night and on 13. 01. 1999, they were handed over back to BSF authorities in a flag meeting attended by BSF Commandant, Shri B. K. Mehta by Bangladesh Rifles. Thereafter, the petitioner was tried by SSFC on 08. 02. 1999 on charges under Section 16 (d) of the Border Security Force act, 1968 ( hereinafter for the sake of brevity referred to as, the BSF Act ) for leaving the post without orders from superior officer and under Section 40 of the BSF Act for crossing over to Bangladesh without authority along with personal arms and ammunition and sentenced him to suffer rigorous imprisonment for 4 months and dismissal from service. Admittedly, the said trial proceedings were set aside by the competent authority holding the same to be illegal. Despite the same, another Record of Evidence ( in short, roe ) proceeding was started against him in respect of the aforementioned charges purported to be under section 16 (d) and 40 of the BSF Act. Thus, the commandant by SSFC once again tried the petitioner on 11. 03. 1999 on the self same charges. He was found not Guilty on the first charge while he was convicted on the second charge and awarded dismissal from service and was also sentenced to 4: months rigorous imprisonment.
( 3 ) IT was held by SSFC by a non-speaking order :-
"verdict OF THE COURT i am of the opinion of the evidence before me that accused No. 80003707 Rank l/nk Name Nirmal Lakra is not guilty of the first charge and guilty of the second charge or is guilty of all charges. Not Guilty of first charge guilty of second charge"
( 4 ) THE petitioner, in the said Court Martial proceeding apart from his aforementioned defence made the following statement in writing in the said enquiry in his defence :-
"written statement of accused i, No. 80003707 L / NK Nirmal Lakra pray that two charges have been leveled against me. Regarding the charge u/s 16d as to why I left post without order of Superior officer it is stated that my superior officer was my post commander. No. 84105325 HC mohinder Singh was my superior officer and I left the post under his orders. It was my duty to obey his orders. Regarding why I crossed the IB u/s. 40, there was no mistake 011 my part. When we both were coming in our own area, we were caught by deceit and taken to Bangladesh after tying our eyes. When our eyes were opened in bangladesh, we came to know that we had been brought there after making us cross the border. We did not cross the bo
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