Consent obtained through deception, as in false promises of marriage, constitutes rape. The procedural integrity in disciplinary actions should not violate natural justice principles.

JUDGMENT :

OM PRAKASH SHUKLA, J.

[The name of the complainant and her mother has been anonymized, for obvious reasons.]

1. The petitioner has filed the present petition assailing his dismissal from service and conviction under Section 376 and Section 468 of the Indian Penal Code, 1860,[“IPC”, hereinafter] by the General Security Force Court, [“GSFC”, hereinafter] constituted under the Border Security Force Act, 1967,[“BSF Act”, hereinafter] wherein initially he was sentenced to undergo rigorous imprisonment for a period of two years. However, subsequently on revision by the GSFC, the sentence was enhanced to rigorous imprisonment for a period of 10 years.

2. Shorn off unnecessary details, the facts as noted from the petition would be that the petitioner, an Ex Constable (GD) bearing No. 021215166 was enrolled in the Border Security Force, [“BSF”, hereinafter] on 1^st June, 2002 as Constable (GD) and after completion of his basic training (BRT) from BTC and BSF Hazaribagh, he joined 162 Battalion, BSF since 27^th August, 2003, which had its headquarters at Thrissur, Kerala.

3. As per the substratum of the matter, while the petitioner was deployed under the Frontier Headquarter, BSF, Odisha, a complaint came to be filed by one *****, Mahila Constable 184 Battalion, BSF, (attached with SHQ, BSF, Trivandrum), [“Complainant”, hereinafter]. The contents of the complaint alleged that on 26^th November 2019, the petitioner, who at that point of time was deployed for campus security duty at SHQ BSF Trivandrum, had established physical relationship with the complainant by giving her false promises of marriage, while she was working as an Assistant in Establishment Branch of SHQ BSF Trivandrum.

4. As per the complaint, the petitioner, although married, provided a fabricated death certificate of his wife namely Smt. Nisha Verma to the complainant in furtherance of the said relationship. It is alleged that both of them spent a night together in a hotel at Kovalam (Kerala) and engaged in consensual sexual activities on 27^th November, 2019 and 12^th October, 2019. Further, allegations of harassment, blackmail and threats of morphing of pictures were also made in the said complaint against the petitioner.

5. Although, the aforesaid complaint was initially inquired into by the Sexual Harassment Inquiry Committee of Sector HQ, BSF, Trivandrum, however, the Committee after conducting inquiry found that the incident did not constitute to be a case of sexual harassment of a woman at workplace and rather was a case of cheating on false promise of marriage as well as of cybercrime. Accordingly, the Committee recommended that the case either be transferred to a Cyber Cell to ascertain facts and suggest disciplinary actions against the petitioner or be transferred to the administrative authority which may take appropriate actions as it deemed fit. Apparently, the said inquiry proceedings were finalized with the remarks of the Inspector General, Odisha Frontier, BSF on 6^th May, 2020 and as per his final remarks, the petitioner was found to have been indulged in cheating, forgery and extra-marital affair with a woman employee of the force, which tantamounts to an offence for which he was liable for disciplinary actions under the BSF Act and Rules.

6. Thus, the complaint came to be inquired into by a Court of Inquiry, [“COI”, hereinafter] constituted by the Commandant of 162 BN BSF vide an order dated 25^th August, 2020 and on the basis of the opinion of the COI dated 8^th October, 2020, disciplinary action was initiated against the petitioner under Section 45 of the Border Security Force Rules, 1969, [“BSF Rules”, hereinafter] Subsequently, the Commandant vide an order dated 11^th December 2020, remanded the petitioner for preparation of Record of Evidence, [“ROE”, hereinafter] in accordance with the Rule 48 of the BSF Rules and charges under Sections 376, 463 and 468 of the IPC. Apparently, on advice of the Law Branch, Frontier Headquarter HQ (Spl Ops), BSF, Bangalo