[2023] 12 S.C.R. 117 : 2023 INSC 802
UNION OF INDIA & OTHERS
v.
JOGESHWAR SWAIN
(Civil Appeal Nos. 8629-8630 of 2014)
SEPTEMBER 05, 2023
[J. B. PARDIWALA AND MANOJ MISRA*, JJ.]
Issue for consideration: Whether the High Court was justified
in setting aside the dismissal order of the constable found guilty
of misconduct, since it was vitiated by infraction of the prescribed
procedure as also was based on no evidence.
Service Law – Border Security Force Act, 1968 – Border
Security Force Rules, 1969 – rr. 49(3), 142(2) – Dismissal from
service – Plea of guilty – Procedural safeguards u/r. 142(2) –
Non-compliance of – Allegations against Border Security Force
constable of clicking the photographs of lady doctor while
she was taking bath – Proceedings initiated by the Summary
Security Force Court wherein constable pleaded guilty – Order
of dismissal from service against the constable – Set aside
by the High Court on the ground of non-compliance of the
prescribed procedure as also no evidence – Correctness:
Held: High Court was justified in finding the dismissal of the
constable on the basis of the plea of guilty unwarranted and liable
to be set aside in exercise of powers u/Art. 226 – Abstract of
evidence recorded was not provided to the constable and twentyfour hours’ time was not given to him for reflection thus, a clear
infraction of the proviso to sub rule (3) of r. 49 – Confession, if any,
made during the course of preparation of the record of evidence,
liable to be ignored – Minutes of the proceedings of the SSFC was
nothing but a verbataim reproduction of the statutory rule, thus,
non-compliance of r. 142(2) – Minutes of the proceedings recording
the plea of guilty did not bear the signature of the constable – In
absence of signature of the constable, pleading guilty appears to
be an unnatural conduct and further dents the credibility of the
SSFC proceeding – Furthermore, there was no eye-witness of
* Author
118 [2023] 12 S.C.R.
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the incident; the camera was recovered from some other person’s
house; the witness to the keeping of the camera by the constable,
in her previous statement made no such disclosure; there was no
cogent evidence with regard to ownership of that camera; and,
even the reel was not developed to confirm the allegations – In
these circumstances, heavy burden lay on the department to
satisfy the conscience of the Court that the plea of guilty was
recorded after due compliance of the procedure prescribed and
the confession was made voluntarily – More so, when the record
of evidence contained no worthwhile evidence regarding the guilt
of the constable, the SSFC ought to have advised the petitioner
to withdraw the plea of guilt – In view thereof, not a fit case for
interference in exercise of the jurisdiction u/Art. 136 – Constitution
of India. [Paras 27, 28 and 35-39]
Border Security Force Act, 1968 – s. 87 – General rules as
to evidence – Proceedings before the Security Force Court –
Applicability of the Evidence Act:
Held: By virtue of s. 87 of the BSF Act, the general rules of evidence
as laid in the Evidence Act, subject to the provisions of the BSF
Act, are applicable to all proceedings before Security Force Court
– Thus, by virtue of s. 145 of the Evidence Act, witness may be
cross examined as to previous statements made by him – Evidence
Act, 1872 – s. 145. [Para 28]
Border Security Force Rules, 1969 – r. 142(2) – Plea of guilty
– Procedural safeguards u/r. 142(2):
Held: Sub-rule (2) of r. 142 would indicate that on the accused
pleading guilty, before a finding of “guilty” is recorded, the SSFC
is required to ascertain whether the accused understands the
nature and meaning of the charge to which he has pleaded guilty
as also must be informed of the general effect of that plea and
of the difference in procedure which will be made by the plea of
guilty – Even if the accused pleads guilty, if it appears from the
record or abstract of evidence or otherwise that the accused ought
to plead not guilty, the SSFC is required to advise him to withdraw
that plea – Strict adherence of the procedural safeguards laid down
in sub-rule (2) of r. 142 is warranted before accepting a plea of
guilty. [Paras 34 and 35]
[2023] 12 S.C.R. 119
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8629-8630 of
2014.
From the Judgment and Order dated 21.02.2013 of the High Court of
Delhi at New Delhi in WPC No.17430 of 2006 and dated 22.11.2013
in RP No.394 of 2013.
R. Bala, Sr. Adv., Rajat Nair, Ms. Swati Ghildiyal, Sharath Nambiar,
Vinayak Sharma, Vishnu Shankar Jain, Arvind Kumar Sharma, Advs.
for the Appellants.
Yasobant Das, Sr. Adv., Kedar Nath Tripathy, Anubhav Mehrotra,
Advs. for the Respondent.
The Judgment of the Court was delivered by
MANOJ MISRA, J.
1. These appeals are directed against the judgment and order of the
High Court of Delhi at New Delhi (in short, “the High Court”), dated
21.02.2013, by which W.P. (C) No. 17430 of 2006 filed by the
respondent (the original petitioner) was allowed, the punishment of
dismissal imposed upon the original petitioner was set aside and a
direction was issued that the original petitioner would be entitled to
full consequential benefits except salary to the extent of 50%. The
appellants have also challenged the order of the High Court dated
22.11.2013, by which the review petition of the appellants seeking a
review of the order dated 21.02.2013 was dismissed, though certain
observations made in the earlier order were recalled.
FACTS
2. The original petitioner/accused (the respondent herein) was a
Constable (General Duty) in the Border Security Force (in short
“BSF”). The case against him was that while he was posted as a
security aide to a lady doctor, on 17.06.2005, at about 7.45 pm, he
clicked pictures of that lady doctor while she was taking her bath.
The allegations against him were that,-- on the fateful day, the lady
doctor requested him to leave her quarter as she were to take a
bath; while she was bathing, she noticed through the window of
her bathroom two camera flashes; suspecting foul play, she raised
an alarm; on her alarm, her mother went out but could find none;
later, the matter was reported to the Chief Medical Officer; the BSF
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authorities investigated the matter and put the original petitioner under
open arrest. During investigation a camera was recovered from the
residential quarter of another person, who was a neighbour of that
lady doctor. Thereafter, under orders of the Battalion Commandant,
proceedings were initiated against the original petitioner in respect
of commission of an offence under Section 40 of the Border Security
Force Act, 1968 (in short, “BSF Act, 1968”), that is for committing an
act prejudicial to the good order and discipline of the Force (BSF),
and record of evidence was prepared. On completion of the record
of evidence, the Commandant remanded the original petitioner for
trial by a Summary Security Force Court (in short, “SSFC”). The
SSFC held its proceedings on 23rd July, 2005 wherein the original
petitioner is stated to have pleaded guilty. Based on that, the SSFC
dismissed the original petitioner from service.
3. Aggrieved by his dismissal from service, the original petitioner
filed an appeal under Section 117 of the BSF Act, 1968 before the
Appellate Authority. In the appeal, the original petitioner refuted the
allegations of clicking pictures of the lady doctor while she was
taking her bath and claimed that,-- while recording the evidence,
the prosecution witnesses were not offered for cross-examination;
there was no evidence forthcoming against the original petitioner
in the testimony of prosecution witnesses; the reel of the camera
allegedly used in commission of the offence was not developed; the
statement of PW-9 with regard to concealment of the camera in her
house by the original petitioner was contradictory to her previous
statement where no such allegation was levelled by her; nothing
incriminating was recovered from the possession of the original
petitioner; the statement of prosecution witnesses indicated that the
original petitioner had denied the allegations levelled against him,
therefore, there was no reason for making a confessional statement,
hence, the same cannot be the sole basis for the punishment. In the
alternative, the original petitioner pleaded that he was a young man,
aged 31 years, who had diligently discharged his duties for over 11
years without a complaint, therefore, even if the original petitioner
is found guilty, a lenient view be taken by taking into account that
he has old parents and a family dependent on him.
[2023] 12 S.C.R. 121
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
4. The aforesaid statutory appeal of the original petitioner was dismissed
by the Director General, BSF, New Delhi. The letter communicating
dismissal of the appeal recited that since the original petitioner had
pleaded guilty to the charge, the SSFC justifiably held him guilty and
dismissed him from service.
5. Aggrieved by dismissal of his appeal, the original petitioner filed writ
petition before the High Court.
FINDINGS OF THE HIGH COURT
6. Before the High Court, the orders impugned in the writ petition were
questioned on two grounds: (a) that there were procedural infirmities
in conducting the proceedings and recording of evidence; and (b)
that the evidence recorded did not inculpate him. With regard to the
first ground, it was pointed out that Rule 60 of the Border Security
Force Rules, 1969 (in short, BSF Rules, 1969”) disqualified an
officer from serving as a Court if he was the officer who convened
the Court; or is the Commandant of the accused. The High Court
observed that the SSFC was not only convened but also presided
over by the Commandant of the original petitioner which vitiated the
proceedings of the SSFC. The High Court, however, also examined
as to whether there was any worth-while evidence against the original
petitioner. After considering the statement of the witnesses recorded
while preparing the record of evidence, the High Court in paragraph
23 of its judgment observed:
“23. A close analysis of the evidence would highlight the following
circumstances:
(1) PW-1 noticed two camera flashes, whilst she was bathing,
around 7-45 PM on 17th June, 2005, after she asked the
petitioner to leave the premises. Despite her alert, no one was
caught. PW-2 corroborated this. PW-3 who reached the spot,
also could not see anyone.
(2) The petitioner was asked to report back immediately; he did so.
During the intervening period, he went to Const. Kunnu’s house,
and borrowed boots. This was verified from the latter’s wife
and sister-in-law (PW 9) the same day. PW-9 did not mention
anything about any camera or the petitioner having asked her
to hide it, when officials enquired from her.
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(3) No incriminating object or article including the camera was
seized from the petitioner’s possession. It is unclear as to who
owned the camera seized by the respondents.
(4) The petitioner was placed under open arrest the next day. He
– according to PW-7, PW-8 and another witness, confessed
to having clicked with the camera and having hidden it with
PW-9. The next day, PW-9 made another statement, leading
to recovery of the camera. This internal contradiction between
the version of PW-9 assumes importance because in her first
statement, she never said anything about the camera. Her
deposition in the Record of Evidence proceeding was over a
week later, i.e. 25.06.2005.
(5) No written record of the confession said to have been made
on 18th June, 2005 exists;
(6) Most importantly, the camera reel (though recovered on 18th
June, 2005) was never developed. It was the best evidence of
the petitioner’s culpability.”
7. In addition to the above observations, the High Court found that while
preparing the record of evidence, the last statement of the prosecution
witnesses was recorded on 29.06.2005 and on the same day, without
even giving twenty four hours’ time to the original petitioner to reflect
upon the evidence, as is the mandate of the proviso to sub rule (3)
of Rule 49 of the BSF Rules, 1969, the statement of the original
petitioner was recorded.
8. The High Court noticed that the minutes of the proceeding recording
acceptance of guilt by the original petitioner before the SSFC was
not signed by the original petitioner.
9. Taking all the aforesaid circumstances as well as the plea that no
confession was made by the original petitioner into consideration,
the High Court opined that there was no worthwhile evidence against
the original petitioner as to weigh on him to admit his guilt. The High
Court thus allowed the writ petition by the impugned order dated
21.02.2013.
[2023] 12 S.C.R. 123
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
10. After the writ petition was allowed by the High Court, the appellants
herein filed a review petition claiming therein that the view taken by
the High Court that there was infraction of Rules 60 and 61 of the
BSF Rules, 1969 is erroneous because those provisions get attracted
only if the trial is by a “General” or a “Petty” Security Force Court,
whereas the original petitioner was tried by a “Summary” Security
Force Court in terms of section 70 of the BSF Act, 1968.
11. On consideration of the plea taken in the review petition, the High
Court recalled its observations regarding infraction of Rules 60 and
61 of the BSF Rules, 1969 in conduct of the proceedings, but rejected
the review petition as the writ petition was allowed on consideration
of the merits of the prosecution evidence.
12. Aggrieved by the orders of the High Court, the Union of India and
BSF administration are in appeal before us.
13. We have heard Mr. R. Balasubramanian, learned senior counsel,
for the appellants; and Mr. Yasobant Das, learned senior counsel,
for the respondent (original petitioner).
SUBMISSIONS ON BEHALF OF THE APPELLANTS
14. The learned counsel for the appellants submitted:
(a) The High Court exceeded its jurisdiction by appreciating the
evidence led while preparing the record of evidence when the
SSFC decided the matter on acceptance of guilt by the original
petitioner.
(b) There was no procedural defect in the trial or in the investigation,
which preceded it.
(c) The record of evidence indicated that though initially the original
petitioner denied the allegations but, ultimately, he admitted his
guilt. Otherwise also, from the statement of PW-9, recorded
during preparation of the record of evidence, it was proved
that the original petitioner had kept that camera in her house.
(d) Adverse inference against the department could not have been
drawn for not developing the reel of that camera because the
original petitioner had admitted his guilt.
124 [2023] 12 S.C.R.
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(e) Absence of signature of the accused on the minutes of the
proceedings recording acceptance of guilt by him does not
violate any of the Rules contained in the then operating BSF
Rules, 1969, as such requirement was inserted in the Rule with
effect from 25.11.2011.
In a nutshell, the submissions on behalf of the appellants were that there
was no infraction of the procedure prescribed; the principles of natural
justice were duly observed; the decision was based on acceptance of
guilt; and since the original petitioner is part of a disciplined force and
was found guilty of clicking photographs of a lady doctor while she was
taking a bath, and whom he was required to protect, the punishment of
dismissal cannot be faulted. Consequently, the order of the High Court
deserves to be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
15. Per Contra, on behalf of the respondent it was submitted that the order
passed by the High Court is just and proper based on appreciation
of the materials on record. Moreover, taking into account that there
was no eyewitness of photographs being clicked by the original
petitioner and no incriminating object or article was recovered from
the original petitioner’s possession, there was no reason for the
original petitioner to accept his guilt. Further, as the whole case of
the department is based on the confession, which is disputed by
the original petitioner, and the minutes of the proceeding recording
confession is not signed by the petitioner, the High Court rightly
explored the evidence to find out whether in the circumstances making
of such a confession was probable or not. Otherwise also, before
the SSFC, no evidence was led and the record of evidence did not
satisfactorily establish the charge against the original petitioner and,
therefore, a decision was taken to remand the original petitioner for
a trial by an SSFC. In these circumstances, there was no occasion
for the original petitioner to admit his guilt. Consequently, once the
High Court on overall assessment of the materials placed on record
has taken a sound view of the matter, it would not be a fit case
where the discretionary powers under Article 136 of the Constitution
of India be invoked to set aside an order whereby substantial justice
has been done.
[2023] 12 S.C.R. 125
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
16. In addition to the above, the learned counsel for the respondent
pointed out certain procedural infirmities, which, according to him,
vitiated the proceedings, namely,-
(i) The first confessional statement was recorded in violation of
Rule 49 (3) of the BSF Rules, 1969, inasmuch as copy of the
abstract of evidence was not made available to the accused
and the accused was not cautioned in the manner laid down in
sub-rule (3) of Rule 48 before recording his statement. Moreover,
it was recorded on the same day when the deposition of the
last witness was recorded, that is, without giving 24 hours’ time
for reflection, as is the mandate of the proviso to sub-rule (3)
of Rule 49 of the BSF Rules, 1969;
(ii) When the confession was recorded, the original petitioner was
under open arrest, therefore such a confession would be hit by
Section 26 of the Indian Evidence Act, 1872 which becomes
applicable by virtue of Section 87 of the BSF Act, 1968;
(iii) The SSFC comprised of the Commandant of the accused as
such he was disqualified from being a part of the Court by virtue
of Rule 60 of the BSF Rules, 1969. That apart, the Commandant
had ordered for preparation of the record of evidence as well
as for open arrest of the original petitioner therefore, conduct
of trial by him amounted to gross violation of the principles of
natural justice.
In a nutshell, the submission of the learned counsel for the respondent
is that the dismissal of the original petitioner (the respondent herein) is
not only vitiated by infraction of prescribed procedure but is based on
no evidence. Therefore, the order passed by the High Court is not liable
to be interfered with in exercise of jurisdiction of this Court under Article
136 of the Constitution of India.
DISCUSSION
17. We have considered the submissions and have perused the record.
As we notice that the order of dismissal from service was based
on original petitioner’s acceptance of his guilt before the SSFC,
before proceeding further, it would be useful to have a glimpse of
the relevant provisions of the BSF Act, 1968 and the BSF Rules,
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1969 concerning a “Security Force Court” and proceedings before it.
18. Section 2 (u) of the BSF Act, 1968 defines “Security Force Court”
as, “means a court referred to in section 64”. Section 64 of the BSF
Act provides:
“… there shall be three kinds of Security Force Courts: -
(a) General Security Force Courts;
(b) Petty Security Force Courts; and
(c) Summary Security Force Courts.”
19. Section 87, which applies to all kinds of Security Force Courts,
provides that the Indian Evidence Act, 1872 (Act No. 1 of 1872)
shall, subject to the provisions of the BSF Act, 1968, apply to all
proceedings before a Security Force Court.
20. In this case the dismissal order was passed by an SSFC. It would thus
be appropriate to have a look at the relevant provisions concerning
an SSFC. Section 70 provides: -
“S.70. Summary Security Force Court.—
(1) A Summary Security Force Court may be held by the
Commandant of any unit of the Force and he alone shall
constitute the Court.
(2) The proceedings shall be attended throughout by two other
persons who shall be officers or subordinate officers or one of
either, and who shall not as such, be sworn or affirmed.”
21. Punishments awardable by a Security Force Court are specified in
Section 48 of the BSF Act, 1968 which, inter-alia, includes the power
to dismiss from service.
22. Section 141 (1) of the BSF Act, 1968 empowers the Central
Government to make rules for the purpose of carrying into effect
the provisions of the BSF Act, 1968. Sub-section (2) of Section 141,
inter alia, provides:
“(2) In particular, and without prejudice to the generality of the
foregoing power to frame such rules as may provide for,--
(a) ….
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UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
(b) ….
(c) …..
(d) ……
(e) the removal, retirement, release or discharge from the service
of persons subject to this Act;
(f) ……
(g) the convening, constitution, adjournment, dissolution and sittings
of Security Force Courts, the procedure to be observed in trials by
such courts, the persons by whom an accused may be defended in
such trials and the appearance of such persons thereat;
(h)…….
(i) the forms of orders to be made under the provisions of this Act
relating to Security Force Courts and the awards and the infliction
of death, imprisonment, and detention
(j)…..
(k) any matter necessary for the purpose of carrying this Act into
execution, as far as it relates to the investigation, arrest, custody,
trial, and punishment of offences triable or punishable under this Act
(l)……
(m) the convening of, the constitution, procedure and practice of,
Courts of inquiry, the summoning of witnesses before them and the
administration of oaths by such Courts
(n). ...
(o). …”
23. In exercise of its powers conferred upon it by Section 141 of the
BSF Act, 1968, the Central Government notified BSF Rules, 1969.
Chapter VII of the BSF Rules, 1969 deals with investigation and
summary disposal. Rule 43 provides that where it is alleged that a
person subject to the Act other than an officer or a subordinate officer
has committed an offence punishable thereunder, the allegation shall
be reduced to writing in the form set out in Appendix IV. Whereas,
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if the offence is allegedly committed by an officer or a subordinate
officer then the allegation shall be reduced to writing in the form set
out in Appendix VI. Rule 45, inter alia, provides: -
“45. Hearing of the charge against an enrolled person.—
(1) The charge shall be heard by the Commandant of the accused
in the following manner: -
(i) The charge and statements of witnesses, if recorded, shall be
read over to the accused;
(ii) If written statements of witnesses are not available, or where
the Commandant considers it necessary to call any witness,
he shall hear as many witnesses as he may consider essential
to enable him to determine the issue;
(iii) Wherever witnesses are called by the Commandant, the accused
shall be given opportunity to cross-examine them;
(iv) Thereafter, the accused shall be given an opportunity to make
a statement in his defence.
(2) After hearing the charge under sub-rule (1), the Commandant
may—
(i) award any of the punishments which he is empowered to
award, or
(ii) dismiss the charge, or
(iii) remand the accused, for preparing a record of evidence or for
preparation of an abstract of evidence against him, or
(iv) remand him for trial by a Summary Security Force Court:
Provided that, in case where the Commandant awards more than
7 days’ of imprisonment or detention he shall record the substance
of evidence and the defence of the accused ...”
24. In the instant case, it is not in dispute that the Commandant on
21.06.2005 ordered for preparing the record of evidence.
25. Rule 48 deals with preparation of the record of evidence. It provides
that where the officer orders for the record of evidence, he may
[2023] 12 S.C.R. 129
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
either prepare the record of evidence himself or detail another
officer to do so. Sub-rule (2) of Rule 48 provides that the witnesses
shall give their evidence in the presence of the accused and the
accused shall have right to cross-examine all witnesses who give
evidence against him. Sub rule (3) of Rule 48 provides that after all
the witnesses against the accused have been examined, he shall be
cautioned in the following terms: “You may make a statement if you
wish to do so, you are not bound to make one and whatever you
state shall be taken down in writing and may be used in evidence.”
After having been cautioned in the aforesaid manner whatever the
accused states is to be taken down in writing. Sub-rules (4) to (6)
of Rule 48 provide as follows:
“(4) The accused may call witnesses in defence and the officer
recording the evidence may ask any question that may be necessary
to clarify the evidence given by such witnesses.
(5) All witnesses shall give evidence on oath or affirmation: provided
that, no oath or affirmation shall be given to the accused nor shall
be cross-examined.
(6)(a) The statements given by witnesses shall ordinarily be recorded
in narrative form and the officer recording the evidence may, at the
request of the accused, permit any portion of the evidence to be
recorded in the form of question and answer;
(b) The witnesses shall sign their statements after the same have
been read over and explained to them.”
Sub-rule (8) of Rule 48 provides that after the recording of evidence
is completed the officer recording the evidence shall give a certificate
in the following form: -
“Certified that the record of evidence ordered by … Commandant
… was made in the presence and hearing of the accused and the
provisions of rule 48 have been complied with.”
26. Rule 49 of the BSF Rules, 1969 provides for preparation of an abstract
of evidence. Sub-rule (2)(a) of Rule 49 provides that the abstract of
evidence, shall include,--- (i) signed statements of witnesses wherever
available or a precis thereof, or (ii) copies of all documents intended
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to be produced at the trial. Sub-rule 2(b) of Rule 49 provides that
where signed statements of any witnesses are not available a precis
of their evidence shall be included. Sub-rule (3) of Rule 49 provides:
“49 (3). A copy of the abstract of evidence shall be given by the officer
making the same to the accused and the accused shall be given an
opportunity to make a statement if he so desires after he has been
cautioned in the manner laid down in sub-rule (3) of rule 48:
Provided that the accused shall be given such time as may
be reasonable in the circumstances but in no case less than
twenty-four hours after receiving the abstract of evidence to
make his statement.”
27. In the instant case, from the materials brought on record we find that
the original petitioner was placed under open arrest on 20.06.2005.
On 21.06.2005, the Commandant of 128 Battalion BSF, wherein
the original petitioner was posted, issued an order for recording
of evidence. During the course of recording of evidence, the last
witness statement, that is of PW-10, was recorded on 29.06.2005.
On 29.06.2005 itself, the original petitioner was asked to give
his statement. According to the original petitioner, the abstract of
evidence was not provided to him and twenty-four hours’ time was
not given to him for reflection therefore, there was a clear infraction
of the proviso to sub rule (3) of Rule 49 of the BSF Rules, 1969.
Hence, according to the original petitioner, confession, if any, made
during the course of preparation of the record of evidence, is liable
to be ignored.
28. In our view, there appears substance in the aforesaid submission of
the learned counsel for the original petitioner. Moreover, in the instant
case after preparing the record of evidence, the Commandant in
exercise of his power under Rule 45(2)(iv) of the BSF Rules, 1969,
vide order dated 05.07.2005, remanded the original petitioner for trial
by an SSFC. In these circumstances, the trial had to proceed as per
Chapter XI of the BSF Rules, 1969 and, therefore, the statement,
if any, recorded during investigation or preparation of the record of
evidence could have been used as a previous statement of the witness
for the purposes of cross-examining the witness as and when the
witness was examined before the Security Force Court. This we say
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UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
so, because by virtue of Section 87 of the BSF Act, 1968 the general
rules of evidence as laid in the Evidence Act, 1872, subject to the
provisions of the BSF Act, 1968, are applicable to all proceedings
before a Security Force Court. Therefore, by virtue of Section 145
of the Evidence Act, 1872, a witness may be cross examined as to
previous statements made by him.
29. Insofar as the proceedings against the original petitioner before the
SSFC are concerned, a perusal of the record would reflect that they
commenced on 23.07.2005 at the Headquarter of 128 Battalion, BSF.
As per record of the proceedings dated 23.07.2005, the charge-sheet
was read out and explained to the accused (original petitioner) and
the accused was asked whether he is guilty or not of the charge.
As per record of the proceedings, the answer of the accused is
recorded in following terms:
“Ans: Guilty.”
After recording the answer as above, it proceeds to record:
“** The accused having pleaded guilty to the charge, the court explains
to the accused the meaning of charge(s) to which he has pleaded
guilty and ascertains that the accused understands the nature of
the charge(s) to which he has pleaded guilty. The court also inform
the accused the general effect of that plea and the difference in
procedure which will be followed consequent to the said plea. The
court having satisfied itself that the accused understands the charge(s)
and the effect of his plea of guilty, accepts and records the same.
The provisions of Rule 142(2) are complied with.”
30. Thereafter, the proceeding on the plea of guilty is recorded in
following terms: -
“The accused No. 959220216; Rank: Constable; Name: Jogeshwar
Swain of 128 BN BSF, is found guilty of the charge.
The record of evidence is read (translated), explained, marked “K”
signed by the Court and attached to the proceedings.
Q.- Do you wish to make any statement in reference to the charge
or in mitigation of punishment?
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Ans. The accused says: I have committed an offence. Please pardon
me. I will not repeat in future.
Q. Do you wish to call any witness as to character?
Ans. No.”
31. The minutes of the proceedings reflect that after the defence was
closed, the Court’s verdict came in following terms: -
“Verdict of the Court
“I am of the opinion on the evidence before me that the accused
No. 959220216 Rank Constable Name Jogeshwar Swain of 128 Bn
BSF is guilty of the charge.”
Thereafter before pronouncing the sentence, original petitioner’s past
record was considered as under:
“It is within my own knowledge from the records of the Battalion that
the accused has not been previously convicted by Security Force
Court or Criminal Court …
That the following is a fair and true summary of entries in his
defaulter sheet exclusive of convictions by a Security Force Court
or a Criminal Court
Within last 12 months: Nil
Since Enrolment: Nil
That he is at present undergoing NIL sentence.
That, irrespective of this trial, his general character has been
satisfactory.
That his age is 30 yrs, …
His service is 10 years, 2 months, 15 days and his rank is Constable
8-5-95. That he has been in arrest/confinement for NIL days. That
he is in possession of the following decorations and rewards: - NIL”
After considering the past record of the original petitioner, sentence was
awarded in following terms:
[2023] 12 S.C.R. 133
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
“SENTENCE BY THE COURT
Taking all these matters into consideration. I now sentence the
Accused No. 959220216 Rank Constable; Name: Jogeshwar Swain
of 128 Bn BSF to be dismissed from the service.
Signed at HQ 128 Bn BSF Patgaon, Ghty-17 on this 23rd day of
July 2005.
Sd/- Commandant.
Dt/- 23.07.2005”
32. A perusal of the minutes of the proceedings of the SSFC dated
23.07.2005 would indicate that though the plea of guilty was recorded
during the course of the proceedings dated 23.07.2005 but the
minutes are not signed by the original petitioner. It is only signed by
the Commandant 128 Battalion BSF, namely, Ghanshyam Purswani.
33. Rule 142 of the BSF Rules, 1969 which fall in Chapter XI of the BSF
Rules, 1969 deals with the manner in which an SSFC is required to
record the plea of guilty. Rule 143 provides for the procedure after
the plea of guilty is recorded. The relevant portion of Rule 142 as it
stood on the date of the proceeding in question is reproduced below:
“142. General plea of “Guilty” or “Not Guilty”.—
(1) The accused person’s plea of “Guilty” or “Not Guilty” or if he
refuses to plead or does not plead intelligibly either one or the
other), a plea of “Not Guilty” shall be recorded on each charge.
(2) If an accused person pleads “Guilty”, that plea shall be recorded
as the finding of the Court; but before it is recorded, the Court
shall ascertain that the accused understands the nature of the
charge to which he has pleaded guilty and shall inform him of
the general effect of that plea, and in particular of the meaning of
the charge to which he has pleaded guilty, and of the difference
in procedure which will be made by the plea of guilty and shall
advise him to withdraw that plea if it appears from the
record or abstract of evidence (if any) or otherwise that
the accused ought to plead not guilty.”
134 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
34. A plain reading of sub-rule (2) of Rule 142 would indicate that on
the accused pleading guilty, before a finding of “Guilty” is recorded,
the SSFC is not only required to ascertain whether the accused
understands the nature and meaning of the charge to which he has
pleaded guilty but it must also inform the accused of the general effect
of that plea and of the difference in procedure which will be made
by the plea of guilty. That apart, even if the accused pleads guilty,
if it appears from the record or abstract of evidence or otherwise
that the accused ought to plead not guilty, the SSFC is required to
advise him to withdraw that plea.
35. Before acting on the plea of guilty, compliance of the procedural
safeguards laid down in sub-rule (2) of Rule 142 is important as it
serves a dual purpose. First, it ensures that before pleading guilty
the accused is aware of not only the nature and meaning of the
charge which he has to face but also the broad consequences that
he may have to suffer once he pleads guilty. This not only obviates
the possibility of an uninformed confession but also such confessions
that are made under a false hope that one could escape punishment
by pleading guilty. The other purpose which it seeks to serve is that it
ensures that confessions do not become an easy way out for deciding
cases where marshalling of evidence to prove the charge becomes
difficult. It is for this reason that sub-rule (2) of Rule 142 requires
an SSFC to advise the accused to withdraw the plea of guilty if it
appears from the examination of the record or abstract of evidence
that the accused ought to plead not guilty. Since, the procedure laid
in sub-rule (2) of Rule 142 serves an important purpose and is for the
benefit of an accused, in our view, its strict adherence is warranted
before accepting a plea of guilty.
36. Reverting to the facts of this case, we notice from the record that
the minutes of the proceedings of the SSFC dated 23.07.2005 do
not indicate as to what advise was rendered to the accused with
regard to the general effect of the plea of guilty taken by him. The
minutes dated 23.07.2005 are nothing but a verbatim reproduction of
the statutory rule. There is no indication as to how the accused was
explained of the broad consequences of him pleading guilty. Verbatim
reproduction of the statutory rule and nothing further, in our view, is
no compliance of the provisions of sub-rule (2) of Rule 142 of the
[2023] 12 S.C.R. 135
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
BSF Rules, 1969. Therefore, we are of the view that the appellants
cannot draw benefit from the minutes of the proceedings as to
canvass that the plea of guilty was accepted after due compliance of
the requirements of sub-rule (2) of Rule 142 of the BSF Rules, 1969.
37. Further, the record of the proceedings of SSFC dated 23.07.2005 does
not bear the signature of the accused. No doubt, the requirement of
having the signature of the accused on the minutes recording plea
of guilty was first introduced by insertion of the proviso to sub-rule
(2) of Rule 142 with effect from 25.11.2011. But there existed no
embargo in obtaining signature of the accused to lend credence to
the making of the plea of guilty. Absence of signature of the accused
in this case assumes importance because here the accused denies
taking such a plea and looking at the available evidence, pleading
guilty appears to be an unnatural conduct. At the cost of repetition,
it be observed that the case against the petitioner was in respect
of clicking photographs of a lady doctor while she was taking her
bath. There was no eye-witness of the incident; the camera was
recovered from some other person’s house; PW-9, a witness to the
keeping of the camera by the accused (i.e., the original petitioner),
in her previous statement made no such disclosure; there was no
cogent evidence with regard to ownership of that camera; and, above
all, even the reel was not developed to confirm the allegations. In
these circumstances, when there was a challenge to the making of
such confession before the High Court, a very heavy burden lay on
the non-petitioners (appellants herein) to satisfy the conscience of
the Court that the plea of guilty was recorded after due compliance
of the procedure prescribed by the BSF Rules, 1969. As we have
already noticed that there was no proper compliance of the procedure
prescribed by sub-rule (2) of Rule 142 of the BSF Rules, 1969,
absence of signature of the accused in the minutes further dents the
credibility of the SSFC proceeding. The High Court was therefore
justified in looking at the evidence to find out whether punishment
solely on the basis of confession (i.e., plea of guilty) was justified.
38. In this context, the High Court meticulously examined the record of
evidence prepared under the direction of the Commander to come
to the conclusion that except for the statement of PW-9 that the
camera was hidden by the original petitioner, there was no worthwhile
136 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
evidence in respect of his culpability. The High Court also noticed
that even PW-9 was not consistent, as during investigation PW-9
had not made any such disclosure that the original petitioner had
hidden the camera in the house from where it was recovered. What
is important is that the house from where the camera was recovered
was not the house of the original petitioner but of another constable
who had his house adjoining the quarter where the lady doctor
had taken her bath. Interestingly, there was no evidence led to
indicate that the said camera was of the original petitioner. In these
circumstances, where was the occasion for the original petitioner to
make confession of his guilt when there was hardly any evidence
against him. Admittedly, none had seen him clicking photographs and
the lady doctor also did not inculpate the original petitioner though
she might have suspected the original petitioner. Further, we notice
that while preparing the record of evidence also, plea of guilty of the
original petitioner was recorded, which the original petitioner claims
to have been obtained under duress and without giving him sufficient
time to reflect upon the evidence as is the mandate of the proviso
to sub-rule (3) of Rule 49 of the BSF Rules, 1969. At this stage, we
may remind ourselves that while preparing the record of evidence
the statement of last witness was recorded on 29.06.2005 and on
that day itself, without giving twenty-four hours’ time for reflection,
as is required by the proviso to sub-rule (3) of Rule 49 of the BSF
Rules, 1969, alleged confessional statement of the original petitioner
was recorded. In these circumstances, when the original petitioner
had raised a plea before the High Court that his confession was
involuntary and that in fact no confession was made by him, there
was a serious burden on the non-petitioners (i.e., the appellants
herein), to satisfy the conscience of the High Court that there had
been due compliance of the procedure and that the confession was
made voluntarily. More so, when the record of evidence contained
no worthwhile evidence regarding the guilt of the original petitioner.
In the aforesaid backdrop, the SSFC ought to have advised the
original petitioner to withdraw the plea of guilt as per provisions of
sub-rule (2) of Rule 142 of the BSF Rules, 1969.
39. In light of the discussion above and also taking into account that the
minutes of the proceedings recording the plea of guilty did not bear
[2023] 12 S.C.R. 137
UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN
the signature of the original petitioner, in our considered view, the High
Court was justified in finding the dismissal of the original petitioner on
the basis of the plea of guilty unwarranted and liable to be set aside
in exercise of powers under Article 226 of the Constitution of India.
The High Court was also justified in not re-opening the proceeding
from the stage where the error crept in by noticing that it would serve
no useful purpose as there was hardly any evidence on record and
nearly a decade had passed since the date of the incident.
40. For all the reasons above, we do not find it a fit case for interference
in exercise of our jurisdiction under Article 136 of the Constitution of
India. The appeals are dismissed. Parties to bear their own costs.
Headnotes prepared by: Nidhi Jain Result of the case : Appeals dismissed.
