The main legal point established in the judgment is the court's interpretation and application of the provisions of the Border Security Force Act, 1968, in the context of disciplinary proceedings and the rights of the accused.

ORDER

The petitioner, a dismissed Constable of Border Security Force (BSF) assailed the order dated 18.5.2011 (Annexure P/1), whereby the disciplinary authority has dismissed him from service and directed him to undergo one year RI in civil jail. The petitioner has also assailed the appellate order dated 27.09.2011 (Annexure P/10), whereby the punishment order is affirmed by the appellate authority.

2. Shri Akshay Verma, learned counsel for the petitioner, submits that the petitioner was served with a charge sheet dated 29.3.2011. The same was followed by an enquiry. The charges against the petitioner were found proved and, therefore, the impugned punishment order was inflicted on him. Learned counsel for the petitioner assailed the disciplinary proceedings, impugned punishment and appellate orders on following counts:-

(i) The allegations mentioned in the charge sheet may amount to criminal offence under the Indian Penal Code (IPC) but do not constitute misconduct under the Border Security Force Act, 1968 (hereinafter called as "Act").

(ii) The punishing authority, i.e., Deputy Inspector General (DIG), STC, BSF, was not competent to inflict the punishment.

(iii) The respondents have not followed the principles and provisions of the Evidence Act and Code of Criminal Procedure (CrPC).

(iv) The medical examination of the complainant/PW1 was not conducted nor any medical report was obtained. Hence, the charge cannot be said to be established.

(v) The petitioner although was permitted to engage a friend but the said friend was not permitted to cross-examine the witnesses.

(vi) The appellate authority has not given personal hearing to the petitioner. In support of this, he relied on 1984 (3) S.L.R. 424 (Madan Singh, Ex Constable, 10th Battalion, B.S.F. vs. Union of India and others).

3. To elaborate, Shri Verma, learned counsel for the petitioner, submits that the charge of sodomy may be an offence under IPC but it does not form part of any misconduct for which the petitioner can be tried under the Act. It is contended that at the time of incident the petitioner was in the strength of 35th Battalion, BSF, situated at Meghalaya. Thus, the Commandant, STC, BSF Tekanpur was not competent authority to remand the petitioner for trial by Summary Security Force Court (SSFC). It is contended that the charge sheet could have been sent to petitioner at his parent unit of 35th Battalion, BSF and the Commandant of 35th Battalion, BSF was competent to take disciplinary action against the petitioner. Thus, it is contended that the DIG, STC, BSF was disqualified to conduct the trial of the petitioner. Specialized Training Centre (STC), Shri Verma contends, is a part of BSF Academy, Tekanpur, whose Commandant for all purposes was Shri V.N. Rai, ADG/Director. STC being component of BSF, Shri V.N. Rai alone was competent to conduct the present SSFC trial. Reliance is placed on para 12 of the Apex Court judgment, reported in AIR 2003 SC 1416 (Union of India and others vs. B.N. Jha).

4. Shri Verma also placed reliance on Section 54 of CrPC. It is contended that as per section 54, accused is required to be examined by medical officer and a medical report needs to be obtained. In absence of subjecting the complainant/boy to said medical examination, there is no evidence against the petitioner. Lastly, it is contended that the petitioner was permitted to cross-examine the witnesses but his friend was not permitted to cross-examine the same. Thus, right of fair trial flowing from Article 21 of the Constitution is denied to the petitioner. In support of his contentions, he relied on 1989 (2) R.C.R. (Cri) 108 (Sanjiv Kumar vs. State of Punjab). He also relied on (2009) 2 SCC (Cri) 813 (Gowrishankara Swamigalu vs. State of Karnataka and another) and (2012) 7 SCC 171 (Narendra Kumar vs. State (NCT of Delhi).

5. Per Contra, Shri Chetan Kanoongo, learned counsel for the respondents supported the action against the petitioner. By taking this Court to the appellate order,