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High Court of Delhi
THE HONOURABLE MR. JUSTICE PRADEEP NANDRAJOG & THE HONOURABLE MR. JUSTICE JAYANT NATH
Sub. Inspector Gurbachan Singh
Versus
UOI & Others
W.P.(C) No. 3838 of 1999
Decided On : 23-01-2014
BSF ACT - SECTION 46 - COMMITTING A CIVIL OFFENCE - ATTEMPT TO MURDER - SECTION 20(A) - USING CRIMINAL FORCE TO HIS SUPERIOR OFFICER - SECTION 46 - USING CRIMINAL FORCE TO A PERSON SUBJECT TO THE BSF ACT BEING HIS SUBORDINATE IN RANK - SECTION 26 - INTOXICATION - SUMMARY SECURITY FORCE COURT - JURISDICTION - PRE-TRIAL IRREGULARITIES - PREJUDICE - EVIDENCE - TESTIMONY OF COMPLAINANT - CORROBORATION - MEDICAL EVIDENCE - CONTRADICTIONS - INFERENCE - HIGH COURT - POWER UNDER ARTICLE 226 - REVIEW OF EVIDENCE - SENTENCE - DISMISSAL FROM SERVICE - JUSTIFICATION.
Fact of the Case:
The petitioner, a BSF Constable, was charged with four offences under the BSF Act, including attempt to murder, using criminal force to his superior officer, using criminal force to a subordinate, and intoxication. A General Security Force Court (GFSC) found him guilty of the second, third, and fourth charges and sentenced him to dismissal from service. The petitioner challenged the findings and sentence before the High Court, which dismissed the petition on the ground that he had not exhausted alternative remedies. The petitioner then filed a petition under Article 226 of the Constitution of India, which was initially dismissed by the High Court but later revived by the Supreme Court.
Finding of the Court:
The High Court held that the trial of the petitioner was not vitiated by the procedural irregularities committed by the department at the pre-trial stage, as the petitioner had not shown that he suffered any prejudice as a result of these irregularities. The Court also held that the findings of the GFSC that the petitioner had fired a shot at a complainant, manhandled his superior officer and a subordinate, and was intoxicated on the day of the incident were not perverse, as they were supported by the evidence on record. The Court further held that it was not open to it to re-evaluate the evidence or substitute its opinion for that of the GFSC, and that the sentence of dismissal from service was justified considering the seriousness of the charges proved against the petitioner.
Issues: 1. Whether the procedural irregularities committed by the department at the pre-trial stage vitiated the trial of the petitioner? 2. Whether the findings of the GFSC that the petitioner had fired a shot at a complainant, manhandled his superior officer and a subordinate, and was intoxicated on the day of the incident were perverse? 3. Whether the High Court could re-evaluate the evidence or substitute its opinion for that of the GFSC? 4. Whether the sentence of dismissal from service was justified?
Ratio Decidendi: 1. Procedural irregularities committed by the department at the pre-trial stage do not vitiate the trial of an accused by a Security Force Court unless they cause prejudice to the accused. 2. Findings of a Security Force Court are not perverse if they are supported by the evidence on record. 3. The High Court cannot re-evaluate the evidence or substitute its opinion for that of a Security Force Court in exercise of its power under Article 226 of the Constitution of India. 4. The sentence of dismissal from service was justified considering the seriousness of the charges proved against the petitioner.
Final Decision: The petition was dismissed.
Pradeep Nandrajog, J.
1. Shorn of unnecessary details, the factual backdrop leading to the filing of the present petition, is that in the year 1967 the petitioner was enrolled as a Constable in Border Security Force and earned promotions to the rank of Sub-Inspector in course of time. In the year 1981 the petitioner was attached to the BSF Subsidiary Training Centre, Ranidanga, Silliguri (hereinafter referred to as the ‘STC Ranidanga’).
2. On June 29, 1987 a charge sheet was served upon the petitioner in which four charges were laid against him as under:
“FIRST
CHARGE
BSF ACT
SECTION-46 COMMITTING A CIVIL OFFENCE
THAT IS TO SAY ATTEMPT TO
MURDER PUNISHABLE UNDER
SECTION-302 IPC:
in that he,
at STC BSF Ranidanga on 06 Dec
1981 fired a shot from .38 revolver,
Registered No.27634 at No 66788230
HC Rahmat Subba of 78 Bn BSF
attached to STC BSF Ranidanga with
intent to kill him.
SECOND
CHARGE
BSF ACT
SECTION-20
(a) USING CRIMINAL FORCE TO HIS
SUPERIOR OFFICER:
in that he,
at STC BSF Ranidanga on 06 Dec
1981 man handled No 67488050
Subedar Amrik Singh of 56 Bn BSF
attached with said STC.
THIRD
CHARGE
BSF ACT
SECTION-46 USING CRIMINAL FORCE TO A
PERSON SUBJECT TO THE BSF ACT
BEING HIS SUBORDINATE IN
RANK:
in that he,
at STC BSF Ranidanga on 06 Dec
1981 man handled No 667882302 HC
Rahmat Subba of 78 Bn BSF attached
with STC BSF Ranidanga.
FOURTH
CHARGE
BSF ACT
SECTION-26 INTOXICATION
in that he,
at Ranidanga on 06 Dec 1981 at about
2000 hrs was found in a state of
intoxication”
3. On July 08, 1982 Inspector General, BSF, West Bengal directed that a General Security Force Court (hereinafter referred to as the ‘GFSC’) be convened to conduct a trial in respect of the charges framed against the petitioner.
4. At the trial, the prosecution examined twelve witnesses; viz. HC Rahmat Subba PW-1, HC Basudev Bhat PW-2, HC B.B.Chhetri PW-3, Assistant Commandant S.D.Chaudhuri PW-4, Subedar Amrik Singh PW- 5, SI Ajit Kumar PW-6, SI Harbans Singh PW-7, HC Tanu Babu Singh PW-8, Dr.Md.Azimuddin PW-9, Assistant Commandant Anil Kamboj PW-10, Subedar U.P.Rai PW-11 and Deputy Commandant S.S.Chehar PW-12.
5. HC Rahmat Subba PW-1, deposed that since August 25, 1980 he was attached to STC Ranidanga. During month of December, 1981 the petitioner was undergoing Junior Leader Course at STC Ranidanga. On December 06, 1981 at about 08.00 P.M. he learnt that the petitioner was sitting near a washerman’s shop with a revolver and was having a few rounds of ammunitions and thus he left for said shop. On reaching the shop he saw the petitioner sitting on a bench in a room adjacent to the shop. He saw a few rounds lying on a table in front of the bench where the petitioner was sitting. The petitioner told him that the rounds belonged to him. The room where the petitioner was sitting was out of bounds for BSF personnel for the reason liquor used to be sold illegally from there. During his conversation with the petitioner it appeared to him that the petitioner had consumed liquor. He persuaded the petitioner to accompany him to STC Ranidanga since it was getting late. At about 08.30 P.M. when they reached the gate of STC Ranidanga he requested the petitioner to deposit his revolver in the Kote but the petitioner refused in spite of being told of the standing orders, stating that the revolver was his personal property. At that the petitioner pushed him due to which he fell on the ground. The petitioner hurled abuses at him and proceeded towards the tent where the students/personnel undergoing Junior Leaders Course were staying. As he stood up, he saw the petitioner approach him. The petitioner was hurling abuses at him and branding him a thief. He again requested the petitioner to deposit the revolver in the Kote whereupon the petitioner gave a blow on his right shoulder as a result whereof he again fell on the ground. Thereafter the petitioner took out the pistol from his jacket and pointed the same towards him and said that he would shoot him. On sensing danger he immediately stood up from the ground and ran
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