W.P.(C) 17430/2006 Page 1

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 22.01.2013

Decided on: 21.02.2013

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W.P.(C) 17430/2006

SHRI JOGESWAR SWAIN

…….Petitioner

Through: Ms. Saahila Lamba, Advocate.

Versus

UNION OF INDIA AND ORS.

….Respondents

Through: Sh. Amrit Pal Singh, CGSC with

Sh. Bhupinder Sharma, Law Officer, for

Resp. Nos. 1 to 4.

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

MR. JUSTICE S. RAVINDRA BHAT

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1. The petitioner joined the Border Security Force (BSF) as a

Constable (92 BN BSF Kalyani Nadia) on 10.05.1995. Subsequently,

he was posted as Constable in Kashmir and discharged his duties at

different times, in Punjab, Manipur and Assam. He states that he was

rewarded for his duties in tackling terrorists at Manipur and that he

had never earned any adverse remarks or entry during his entire

career. When he was working as Constable in 128 BN, BSF, Patgaon,

Kamrup in Assam, he was deployed for security aid duty to Dr. (Mrs.)

Somy Dey Sarkar, who used to reside in the BSF Campus at Guwahati

since 26.01.2004. It is stated that while on such duty, on 17.06.2005,

2013:DHC:969-DB

W.P.(C) 17430/2006 Page 2

Dr. (Mrs.) Somy Dey Sarkar instructed him at 07.45 PM to leave her

quarters as she was about to bathe. He, therefore, left the quarters. Dr.

Sarkar thereafter alleged that she found/noticed two camera flashes

within a span of few seconds from the window of the bathroom where

she was bathing. She immediately shouted for help; her mother, Smt.

Dipali Dey Sarkar went outside and found nobody. It was alleged that

the matter was immediately reported to the Chief Medical Officer, Dr.

A.C. Karmakar over telephone; acting on his advice, she instructed

the Gate Commander to stop the petitioner from leaving the BSF

Campus. The BSF authorities thereafter investigated the matter and

ultimately recorded the petitioner‟s admission; a written report was

prepared and a proceeding was drawn-up against the petitioner under

Rule 49 of the BSF Rules, 1969. In the course of the proceedings, it

was alleged that the BSF authorities seized one Kodak Camera make

EC-300 with a photo reel from the house of Constable Kunnu

Thamaria, adjacent to the quarters of Dr. Sarkar. The seizure memo

stated that the camera was used to take pictures of Dr. Sarkar. The

petitioner was placed under open arrest on 20.06.2005 and taken into

custody by the BSF the same day. By order dated 21.06.2005, the

Commandant of 128 BN BSF issued an order for recording of

evidence, directing that the proceeding in that regard should be

completed by 29.06.2005. The petitioner claims that he apprehended

that his wife might be sexually harassed by another Constable by

taking advantage of his arrest, which he expressed to the concerned

authorities, leading to allotment of a quarter inside the Campus, on

22.06.2005.

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W.P.(C) 17430/2006 Page 3

2.

Pursuant to the directions of the Commanding Officer, the

Deputy Commandant recorded the evidence of the prosecution

witnesses whilst the petitioner was in custody. In all, 10 witnesses

were examined and the statement of the accused was recorded at the

end of the proceedings. The concerned official, i.e. the Deputy

Commandant certified that the Record of Evidence (RoE) directed by

the Commandant was completed on 29.06.2005. On the basis of the

Record of Evidence, the Commandant of the petitioner‟s Batallion

was of the opinion that the case be presented before the Security Force

Court, and intimated accordingly, on 05.07.2005. The petitioner was

also asked