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2015 Supreme(Del) 443
High Court of Delhi
PRADEEP NANDRAJOG & PRATIBHA RANI, JJ.
Deepak Roy – Appellant
Vs.
UOI & Others – Respondent
W.P.(C) No. 7826 of 2013
Decided On : 18-03-2015
For the Petitioner:Rekha Palli, Garima Sachdeva, Shruti Munjal, Advocates.
For the Respondents:Sarika Singh, Advocate.
The duty of the court to ensure the accused understands the nature of the charge and the importance of properly recording the plea of guilt in disciplinary proceedings.
Headnote:
BSF Act - Disciplinary Proceedings - Section 40 - Summary of Acts and Sections: The court discussed the disciplinary proceedings under Section 40 of the BSF Act, 1968 and the relevant rules such as Rule 45 and Rule 46 of the BSF Rules, 1969. The judgment highlighted the importance of recording the plea of guilt and the duty of the court to ensure the accused understands the nature of the charge.
Fact of the Case:
The petitioner, a Head Constable in the BSF, was charged with passing information to smugglers and engaging in smuggling activities. The petitioner pleaded guilty, but his signatures were not obtained. The court found the trial proceedings to be fundamentally flawed and quashed the penalty imposed on the petitioner, directing his reinstatement in service.
Finding of the Court:
The court found the trial proceedings to be fundamentally flawed due to the failure to ensure the accused understood the nature of the charge and the duty to record the plea of guilt properly. The penalty imposed on the petitioner was quashed, and he was directed to be reinstated in service.
Issues: The issues revolved around the flawed trial proceedings, including the failure to properly record the plea of guilt and ensure the accused understood the nature of the charge.
Ratio Decidendi: The court emphasized the duty to ensure the accused understands the nature of the charge and the importance of properly recording the plea of guilt. It also highlighted the need for fair trial procedures, especially in disciplinary proceedings.
Final Decision: The penalty imposed on the petitioner was quashed, and he was directed to be reinstated in service. The competent authority was given liberty to try the petitioner afresh.
Pradeep Nandrajog, J.
1. On February 06, 2010 an offence report was put up before Commandant Sumer Singh of the 65th Bn. BSF to which the petitioner was attached as a Head Constable. The offence listed in the offence report was for having acted in a manner which was prejudicial to good order and discipline of the force (an offence under Section 40 of the BSF Act, 1968). The factual content of the offence report was that while performing the duties in AOR of JCP Attari between 1st to 3rd February, 2010, the petitioner knowingly passed information to notorious smugglers about the smuggling routes and disclosed the BSF operational plan to them which may lead to imperil the success of the force and also passed operational information which would facilitate the smugglers to carry out the smuggling in the unit AOR across the border.
2. The seriousness of the offence report, as would be expected, led the Commandant to pass an order on the same day, after hearing the petitioner, that Record of Evidence be drawn up. 2-IC Sh.A.R.Rathore, was detailed to conduct the proceedings concerning Record of Evidence. As required by Rule 45 of the BSF Rules, 1969, the Commandant drew up the charge in respect whereto the Record of Evidence had to be prepared, and we note that the charge drawn up was:-
“The accused NO.880067012 HC Dipak Roy ‘C’ Coy of 65 Bn.
BSF, Khasa Amritsar (PB) is charged with:-
BSF ACT – 1968, U/S 40 “AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE.”
in that he,
while performing the duties of HC (G) in AOR of JPC Attari on 01 to 03 Feb 2010 at about varied hrs knowingly passed information to notorious smugglers about the smuggling routes and disclosed the BSF operational plan to them which may lead to imperil the success of the force and also passed operational information which may facilitate the smugglers to carry out smuggling in the unit AOR across the border.”
3. 2-IC S.Rathore recorded statements of 8 witnesses and forwarded the Record of Evidence to the Commandant of the 65th Bn.
4. Since it transpired that one incriminating evidence against the petitioner was a stated confession made by him in the presence of 2-IC A.S.Rathore before the Commandant, a decision was rightly taken to attach the petitioner before the 41st Bn. BSF for purposes of disciplinary proceedings, since the 2-IC and the Commandant would be the witnesses of the department. Rule 46 of the BSF Rules, 1969 mandate that the Commandant of the Battalion shall not deal with a case where he himself is a witness or is otherwise personally interested in the case. The Record of Evidence Proceedings were thus treated as non-est.
5. Accordingly, the petitioner was attached with the 41st Bn. BSF, the Commandant whereof Sh.D.S.Sandha directed fresh Record of Evidence to be drawn up and we find that on April 21, 2010, he drew up a fresh charge-sheet in respect of which the Record of Evidence had to be prepared and deputed 2-IC S.S.Soodan to do the needful. The chargesheet drawn up on April 21, 2010, having three charges reads as under:-
The accused No.880067012 HC Deepak Roy, 65 Bn. BSF attached with 41 Bn. BSF is charged with:-
“CHARGE-SHEET
First Charge
U/S 40
BSF Act 1968 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
in that he,
while performing the duties of Head Constable (General) in Area of Responsibility of Joint Check Post, Attari in between 01st to 03rd Feb 2010, improperly passed information to a decoy smuggler about the smuggling routes and disclosed the BSF operational plan and information which could have led to imperil the success of the Force and facilitate the smugglers to carry out the smuggling activities across the border had there been real smuggler on that occasion.
Second Charge
U/S 40
BSF Act 1968 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
in that he,
at Border Out Post, Pulmoran in the month of Oct 2009, while performing the duties of Head Constable (General), improperly tried to influe
