Penal Code, 1860 – s. 302 – Murder – Conviction of the accused u/s. 302 and sentenced to imprisonment for life by the courts below – Ocular account of two prosecution witness that the assault on the deceased took place at night, however, neither of them lodged the FIR, rather, a named FIR lodged next day by the village chowkidar of neighbouring village, even though she was not an eye witness – Correctness:

[2023] 12 S.C.R. 138 : 2023 INSC 801

HARILAL ETC.

v.

STATE OF MADHYA PRADESH (NOW CHHATTISGARH)

(Criminal Appeal Nos. 2216-2217 of 2011)

SEPTEMBER 05, 2023

[J. B. PARDIWALA AND MANOJ MISRA*, JJ.]

Issue for consideration: Whether the High Court was justified

in upholding the order of the Sessions Judge convicting and

sentencing the appellants to imprisonment for life u/s 302 IPC.

Penal Code, 1860 – s. 302 – Murder – Conviction of the accused

u/s. 302 and sentenced to imprisonment for life by the courts

below – Ocular account of two prosecution witness that the

assault on the deceased took place at night, however, neither

of them lodged the FIR, rather, a named FIR lodged next day

by the village chowkidar of neighbouring village, even though

she was not an eye witness – Correctness:

Held: Trial court as well as the High Court while appreciating the

evidence did not properly address various aspects – Neither the

trial court nor the High Court carefully considered the deposition

of the village chowkidar who lodged a named FIR – Two eye

witness were chance witness – Testimony of one inconsistent with

his previous statement – His statement inconclusive as regards

the assault being cause of death, thus cannot be relied upon to

convict the accused for offence of murder – Testimony of the other

one not such that it may on its own form the basis of conviction

of the accused for the offence of murder – More so, it leaves

many gaps in the prosecution story – Furthermore, the seizure

of lathi and clothes from the accused cannot be considered as

a clinching circumstance warranting conviction – In view thereof,

prosecution not able to convincingly prove the genesis of the

crime as also the manner in which the murder took place and by

whom, inasmuch as the evidence led by the prosecution gives rise

to a strong probability of the killing being a consequence of mob

action on the deceased for his alleged involvement with a lady of

the village – Thus, taking into account the various circumstances,

the accused entitled to benefit of doubt – Judgment and order of

the courts below set aside. [Paras 14, 16, 18 and 19-26]

* Author

[2023] 12 S.C.R. 139

HARILAL ETC. v. STATE OF MADHYA PRADESH

(NOW CHHATTISGARH)

Delay/laches – FIR – Delay in lodging FIR – Absence of proper

explanation – Duty of the court:

Held: Courts must be on guard and test the evidence meticulously

to rule out possibility of embellishments in the prosecution story –

Delay gives opportunity for deliberation and guess work especially

when there is high probability of no one witnessed the incident at

night in an open place or a public street. [Para 19]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2216-

2217 of 2011.

From the Judgment and Order dated 17.02.2010 of the High Court of

Chhattisgarh at Bilaspur in CRLA Nos.864 and 865 of 1991

D. N. Goburdhun, Sr. Adv., Aakarsh Kamra, Ms. Gauri Goburdhun,

Advs. for the Appellants.

Mrs. Prachi Mishra, AAG, Mahesh Kumar, Amanpreet Singh Rahi,

Nikhilesh Kumar, Ms. Devika Khanna, Mrs. V D Khanna, M/s. Vmz

Chambers, Advs. for the Respondent.

The Judgment of the Court was delivered by

MANOJ MISRA, J.

1. These two appeals are directed against a common judgment and

order of the High Court of Chhattisgarh at Bilaspur (in short, “the

High Court”), dated 17.02.2010, passed in Criminal Appeal Nos. 864

and 865 of 1991, whereby the appeals of Harilal and Parasram @

Rangnath (the appellants herein) were dismissed and the order of the

third Additional Sessions Judge, Bilaspur, dated 13.07.1991, passed

in S.T. No.153 of 1990, convicting and sentencing the appellants to

imprisonment for life under Section 302 of the Indian Penal Code,

1860 (in short, “I.P.C.”) was affirmed.

Introductory Facts

2. Three accused, namely, Anshram, Parasram alias Rangnath and

Harilal, were tried for committing murder of Ellahabadiya alias

Vijay (the deceased) on 25.08.1989 at about 8.00 pm. Based on

information received, a first information report (Ex.P-7) (in short,

“the FIR”) naming the aforesaid three accused was lodged by Smt.

Jugmatibai (PW-9) at P.S. Hirri, District Bilaspur (M.P.) on the next 

140 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

day of the incident i.e. on 26.08.1989 at about 10 am. On 26.08.1989

itself, the inquest was conducted and the police collected bloodstained earth/plain earth from the spot and also seized a lathi,

which was lying near the body of deceased. On the same day, the

police showed discovery of lathi, Baniyan, Lungi (loin-cloth) at the

instance Anshram from his house. Similarly, discovery of lathi and

clothes at the instance of Parasram was disclosed from his house.

The third accused, namely, Harilal, was arrested on 27.08.1989 and

on the same day, a lathi and clothes were allegedly discovered at

his instance from his house. The dead body of the deceased was

sent for autopsy, which was conducted by Dr. S. K. Dutta (PW-8) on

27.08.1989 at 12.30 pm. PW-8 noticed that rigor mortis was present

in lower limbs; decomposition had started; the eyes were forced out

of the sockets; tongue was protruding between the teeth; lips were

swollen and everted; abdomen was distended; penis and scrotum

were swollen; multiple skin blisters containing reddish fluid on the

face and front of the trunk were seen and faecal matter had escaped.

PW-8 observations in respect of the cadaver were as follows: -

Ante-mortem External Injuries: -

(i) Lacerated wound 3.5cm x 2.5cm x 0.5cm on left temporal region;

(ii) Lacerated wound 2.5cm x 1 cm dividing the centre of the pinna

of the left ear. Both the injuries were black and were surrounded

by black clotted blood.

(iii) Three contusions on one third upper portion of the left thigh in

the side portion:

 25cm x 1 cm;

12 cm x 1 cm; and

7cm x 1cm.

Colour of which had blackened

Internal Examination: -

Brain - Extradural haemorrhage on the left temporal region in the

form of localised clot which had compressed and flattened the

underlying brain. 

[2023] 12 S.C.R. 141

HARILAL ETC. v. STATE OF MADHYA PRADESH

(NOW CHHATTISGARH)

Chest - Fractures on 4th, 5th, 6th, 7th and 8th ribs on both sides.

Lungs - Contusion of both lungs on the anterior surface. Pleural

cavity contained black clotted blood.

Heart - Both the chambers of heart were empty.

Cause of death - Shock due to injuries in the brain and lungs.

Duration: Time since death is 24 to 48 hours.

3. The prosecution examined as many as 15 witnesses. They were

broadly categorized by the trial court into three categories: - (i) eyewitnesses of the incident; (ii) witnesses who reached the spot on

getting information about the incident; and (iii) witnesses who proved

proceedings relating to investigation, medical examination, inquest,

seizure memos, preparation of site plan, etc.

4. The first category of witnesses were: PW-1 (Kanhaiya Lal); PW-2

(Sitaram); PW-3 (Mohanlal); and PW-6 (Ganesh). Another witness,

namely, PW-4 (Ramanand), who was set up as a person who

arrived at the spot on receipt of information of the incident, during

his deposition, portrayed himself as an eye-witness of the incident.

5. Amongst the aforesaid category of witnesses, PW-1 was declared

hostile. When he was confronted with his previous statement recorded

under section 161 of the Code of Criminal Procedure, 1973 (in

short, “the Code”) he stated that the police had forcibly taken his

statement though he had not witnessed the incident. Consequently,

the trial court found his testimony of no benefit to the prosecution.

PW-3 was discarded by the trial court as unreliable because he was

found inconsistent with his statement made during the course of

investigation. PW-4, who for the first time during examination in Court

professed himself to be an eye-witness, was also found not reliable

as he too was inconsistent with his previous statement recorded

during the course of investigation. Thus, only two eyewitnesses

of the incident, namely, PW-2 and PW-6, were discussed in some

detail by the trial court.

6. The trial court noticed that though PW-2 (Sitaram) supported the

prosecution case as against accused Harilal but he did not name

the other two accused, namely, Anshram and Parasram. However,

PW-6 who inculpated all the three accused was found wholly reliable 

142 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

by the trial court. Therefore, by placing reliance on his testimony,

the trial court convicted all the three accused. While doing so, the

trial court found the testimony of PW-6 duly corroborated by medical

evidence as also by the circumstance of discovery of blood-stained

lathi and clothes at the instance of the accused.

7. Aggrieved by their conviction, three separate appeals were filed by

each of the three accused. Criminal Appeal No. 866 of 1991, which

was preferred by Anshram, stood abated consequent to his death

during pendency of the appeal. Whereas, the other two appeals,

namely, Criminal Appeal Nos. 864 of 1991 and 865 of 1991, filed

by the present set of appellants were dismissed by the High Court

by the impugned judgment and order.

8. We have heard Shri D.N. Goburdhun, learned senior counsel, for

the appellants; and Ms. Prachi Mishra, Additional Advocate General,

for the State of Chhattisgarh.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

9. The learned counsel for the appellants submitted that the incident

is of late evening/night whereas the FIR was lodged next day at

10 am, which is suggestive of the fact that no one witnessed the

incident and FIR was lodged after deliberation and the prosecution

story developed thereafter; otherwise also, testimony of PW-2 and

PW-6 is unreliable for the following reasons:

(i) PW-2 is a resident of village Khapri, whereas the incident

occurred in village Kohroda. According to PW-2, he had visited

Kohroda in the evening to watch television. There he witnessed

the incident. After which, he left the village and in the evening

itself he informed Smt. Jugmatibai (PW-9), a Kotwarin (village

chowkidar) of village about the incident. However, PW-9

stated that she was not informed by any person who might

have witnessed the incident. This, according to the appellants’

counsel, seriously dents the credibility of PW-2. That apart,

PW-2 only disclosed the name of Harilal. Further, PW-2 does

not state that the deceased was assaulted to such an extent

that he would have expired, or had expired, on account of

injuries sustained by him. 

[2023] 12 S.C.R. 143

HARILAL ETC. v. STATE OF MADHYA PRADESH

(NOW CHHATTISGARH)

(ii) PW-6 is not consistent with his previous statement made during

the course of investigation, inasmuch as during investigation

he disclosed that the accused assaulted the deceased with

sticks (danda) but in his deposition in Court he stated that the

accused had assaulted the deceased with lathi. A lathi is much

thicker and heavier than a danda. That apart, PW-6 was not

consistent in respect of the reason as to why he came out of

his house to witness the incident. In his deposition in Court he

had stated that,- he was in his house at the time of the incident;

he came out on alarm raised by mother of accused Parasram

that Ellahabadiya alias Vijay (i.e., the deceased) was beating

her son Parasram, which was inconsistent with his previous

statement made during investigation wherein he had stated that

he came out on hearing loud noises of a fight in the Gali (alley).

Moreover, PW-6 disclosed that the incident occurred in front of

the house of Anshram whereas the body of the deceased was

found near a temple which was at a considerable distance from

the house of Anshram. Otherwise also, PW-6 made no effort to

lodge a report, or inform persons of the village. This conduct

of his does not inspire confidence in his testimony.

10. In the alternative, it was submitted that from the testimony of

prosecution witnesses it appears to be a case where there was

a street fight. The cause and motive for such street fight is not

clear except that there existed some dispute with regard to a lady.

Therefore, considering the nature of the weapons used, it would

be a case falling under one of the Exceptions of Section 300 I.P.C.

Hence conviction under Section 304 Part-I I.P.C. would serve the

ends of justice and their sentences might be reduced to the period

of sentence already undergone as both the surviving accused

(appellants herein) have served over 10 years of sentence during

the course of the trial / appeal.

SUBMISSIONS ON BEHALF OF THE STATE

11. Per contra, the learned counsel for the State submitted that PW-9 (i.e.

the informant) had deposed that the villagers guarded the body entire

night and next day morning FIR was lodged. In these circumstances,

it cannot be said that the FIR is delayed and, therefore, contrived.

PW-2 is a natural witness who, on his way return, witnessed the 

144 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

incident and informed the informant. Even if PW-2 did not name all

the three accused in his deposition, his deposition corroborates the

testimony of PW-6 with regard to the manner in which the deceased

was assaulted by the accused. The testimony of PW-6 inculpates all

the three accused and is consistent with medical evidence. Further,

nothing has come out from their cross-examination to attribute any

improper motive on them to falsely implicate the accused persons.

Thus, there is no good reason to disbelieve the said witnesses

particularly when the trial court and the appellate court has placed

reliance on their testimony after testing the same on the strength

of other materials/evidence(s) on record. She also argued that the

ocular account rendered by PW-2 and PW-6 is corroborated by the

circumstance of discovery of lathi and clothes at the instance of

the accused and serologist report confirms presence of blood on it.

12. In response to the contention that the conviction of the accused could

be altered from one punishable under section 302 IPC to one under

section 304 Part-I, the learned counsel for the State submitted that

the injuries found on the body of the deceased reflects that he was

mercilessly beaten. Medical evidence indicates that there were not

only head injuries but fracture of ribs as well; that too, on both sides.

That apart, no plea was taken by the accused persons to bring their

case under any of the Exceptions of Section 300 of the I.P.C. Hence,

the accused have been rightly convicted for the offence punishable

under section 302 I.P.C. and the appeals lack merit.

DISCUSSION AND ANALYSIS

13. We have considered the rival submissions and have perused the

record.

14. In this case, we notice from the record that the trial court as well as

the High Court while appreciating the evidence have not properly

addressed various aspects, namely, (a) there is no clear cut motive

proved against the accused except that there was some incident

concerning a lady of the village; (b) PW-2 and PW-6 both state

that the deceased was assaulted in front of the house of one of the

accused persons, namely, Anshram, but, the site plan (Ex. P-21/P-22)

does not disclose the house of Anshram and from the site plan as

well as the testimonies of PW-6, PW-9 (the informant) and police 

[2023] 12 S.C.R. 145

HARILAL ETC. v. STATE OF MADHYA PRADESH

(NOW CHHATTISGARH)

witnesses it is clear that dead body of the deceased was found near

a temple about 300 feet away from the place where the deceased

was allegedly assaulted; as to how the dead body reached there, the

ocular account has no explanation though some drag marks were

noticed by the investigating officer; (c) as per seizure memorandum

(Ex. P-13), amongst other articles, a lathi was seized by the police

from the place where the dead body was lying - whose lathi it was,

the prosecution evidence is silent; (d) the articles i.e. lathi and clothes

seized at the instance of the accused though were stained with blood,

the serologist report could not confirm its origin; and (e) PW-2 sets

up a story that he narrated the incident to PW-9 but PW-9, who is

Kotwarin (village Chowkidar) of a neighbouring village, states that

she was not informed by any eye witness, rather she arrived at the

spot as a reaction to the commotion. All these aspects were material

as they were indicative of a mob violence on the deceased due to

some incident concerning a lady of the village.

15. Bearing the above aspects in mind, we shall now carefully examine

the prosecution evidence to test whether it inspires confidence

and succeeds in proving the charge against the accused beyond

reasonable doubt.

16. Before we proceed to analyse the testimony of the two material eyewitnesses of the incident (i.e., PW-2 and PW-6), what is important to

note is that as per the ocular account of PW-2 and PW-6, the assault

on the deceased took place between 7 pm and 8 pm of 25.08.1989.

However, neither PW-2 nor PW-6 lodged the FIR. Rather, a named

FIR was lodged on 26.08.1989 at 10 am by PW-9 i.e., Kotwarin

(village Chowkidar) of neighbouring village Khapri, even though she

was not an eye witness. In these circumstances, the statement of

PW-9 assumes importance to ascertain the source of her information.

Unfortunately, neither the trial court nor the High Court have carefully

considered the deposition of PW-9.

17. PW-9, in her deposition, stated that she is Kotwarin of village Kharpi

and Kotwar of village Kohroda (i.e., the place where incident occurred)

is some other person. Ellahabadiya @ Vijay (the deceased) was a

resident of her village. On the night of the incident, at about 9 pm,

while she was taking a round of her own village, she heard loud

noises coming from village Kohroda. Fellow villagers Lulwa and 

146 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

Sudhwa asked PW-9 to go to village Kohroda. When she went to

village Kohroda, she noticed the dead body of Ellahabadiya lying

near Rupau temple. Upon finding the dead body there, she went to

inform the village Chowkidar of Kohroda, woke him up and brought

him to the place where the dead body was lying. Thereafter, the

body was guarded through the night with the help of villagers and

next day morning, FIR was lodged at P.S. Hirri.

During cross-examination, PW-9 specifically stated that she was not

informed by any person that he had witnessed the deceased being beaten.

She also specifically stated that neither Parasram nor Sitaram came to

inform her about the incident.

18. The statement of PW-9 is of significance for multiple reasons. First,

that PW-2 did not inform her about the night incident as is alleged

by PW-2 in his deposition; second, the body of the deceased was

found near the temple and was kept there overnight; and third, if no

one had told PW-9 about the incident, why a named FIR was lodged.

19. Although there might not have been a specific question put to

PW-9 as regards the delay in lodging the FIR but the fact that it

was a delayed FIR cannot be ignored. When an FIR is delayed, in

absence of proper explanation, the courts must be on guard and test

the evidence meticulously to rule out possibility of embellishments

in the prosecution story, inasmuch as delay gives opportunity for

deliberation and guess work. More so, in a case where probability

of no one witnessing the incident is high, such as in a case of night

occurrence in an open place or a public street.

20. Bearing the above principles in mind, when we test the deposition

of PW-2 against the weight of PW-9’s testimony, the statement of

PW-2 to the effect that after witnessing the incident, he left the spot

and informed PW-9 appears unworthy of acceptance. That apart,

PW-2 does not inculpate all the three accused. He only inculpates

Harilal. In this regard, PW-2 is inconsistent with his previous statement

inasmuch as in his previous statement, with which he was confronted,

he had inculpated all the three accused whereas in his deposition

in Court he stated that he had not stated before the investigating

officer that both Anshram and Harilal were assaulting the deceased.

Moreover, PW-2 does not disclose the seriousness of the assault on 

[2023] 12 S.C.R. 147

HARILAL ETC. v. STATE OF MADHYA PRADESH

(NOW CHHATTISGARH)

the deceased. He does not state that the deceased was seriously

injured by the blows inflicted on him. Therefore, his statement is

inconclusive as regards the assault being the cause of death. Rather,

it leaves room for a possibility that the assault which he witnessed

was just the beginning of a mob assault on the deceased concerning

his involvement with a lady of the village. More so, when the dead

body of the deceased was found 300 feet away from the place where

the deceased was allegedly assaulted. Further, PW-2’s statement

in respect of number of persons assaulting the deceased appears

inconclusive. Taking the above into account and having regard to

the fact that PW-2 is a chance witness, not a resident of the village

where the incident occurred, and his statement was inconsistent

with his previous statement, in our view, it would be unsafe to rely

on PW-2 to convict the accused for the offence of murder.

21. Insofar as PW-6 is concerned, he too is a chance witness, inasmuch

as he was not present at the spot when the assault on the deceased

started. According to him, he came out to witness the incident when

an alarm was raised by mother of Parasram, one of the accused,

that Ellahabadiya (the deceased) was beating her son. According to

PW-6, when he came out, he saw all the three accused assaulting

the deceased with lathi in front of the house of Anshram. He does not

state that the deceased was armed and had attacked the accused.

The deposition of PW-6 that he came out to witness the incident on

alarm raised by accused Parasram’s mother that his son is being

beaten by Ellahabadiya (the deceased) is inconsistent with his

previous statement made during the course of investigation, with

which he was confronted, wherein he stated that he came out on

hearing loud noises coming from the street in front of the house of

Anshram. His previous statement is reflective of a mob attack on the

deceased which is corroborated by PW-6’s conduct, inasmuch as,

according to PW-6, after witnessing the incident, PW-6 went away

without informing any one about the incident and returned back only

when all the villagers congregated at Rupau temple near the dead

body of the deceased. No doubt, different people react differently

to a given situation. But if it had truly been an issue between few

individuals fighting in the street, natural course of human conduct

would be to collect people to solve out issues. However, where

villagers in general, and none in specific, assault a person accused 

148 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

of his involvement with a lady, it is quite natural for by-standers not

to intervene.

22. In addition to the above, what is of significance is that if PW-6 had

arrived at the spot later, when other villagers had collected near

the body of the deceased, he could have informed PW-9 about

the culpability of the accused but, PW-9 categorically states in her

deposition that no one informed her about the perpetrator of the crime.

23. Further, PW-6 gives no indication as to how the body of the deceased

was brought near the temple from the place where he was allegedly

assaulted i.e. in front of the house of Anshram. It be noted that in

paragraph 4 of his deposition, PW-6 categorically states that the

distance between the temple where the body was found and the

place where the deceased was assaulted is 300 feet. For all the

reasons above, we do not find the testimony of PW-6 to be of such

a stellar quality that it may on its own form the basis of conviction of

the accused for the offence of murder. More so, because it leaves

many gaps in the prosecution story, namely, as to how the body came

near the temple and why a lathi was left near the dead body of the

deceased when, as per the police story, all the three assailants had

walked away with their respective lathis, which were later discovered

at their instance.

24. In light of the discussion above, we are of the considered view that

the prosecution has not been able to convincingly prove the genesis

of the crime as also the manner in which the murder took place and

by whom, inasmuch as the evidence led by the prosecution gives

rise to a strong probability of the killing being a consequence of

mob action on the deceased for his alleged involvement with a lady

of the village. Thus, taking into account that it was a case of night

occurrence, the body of the deceased was found at an open place

near a temple; a named FIR was lodged not by any villager of the

place where the deceased was assaulted, but by PW-9 i.e., the village

Chowkidar of the neighbouring village, who admits that no eye witness

had informed her; and the body was found at a distance of 300 feet

from the place where the deceased was allegedly assaulted, we are

of the view that this is a fit case where the accused are entitled to

the benefit of doubt. 

[2023] 12 S.C.R. 149

HARILAL ETC. v. STATE OF MADHYA PRADESH

(NOW CHHATTISGARH)

25. At this stage, we may observe that though the prosecution relied

on seizure of lathis and clothes at the instance of the accused

but these incriminating circumstances have been denied and the

serologist report could not confirm the origin of blood stains found

thereon. That apart, next to the dead body of the deceased, a lathi

was found. This lathi alone could have caused the injuries found on

deceased’s body. Unexplained presence of the lathi is of significance

when it is not the case of the prosecution that the deceased had

used the lathi in self-defence. For all the reasons above, we do not

consider seizure of lathi and clothes from the accused as a clinching

circumstance warranting conviction.

26. The appeals are accordingly allowed. The judgment and order of the

High Court as well as of the Trial Court are set-aside. The appellants

are acquitted of the charge for which they have been tried. The

appellants are reported to have been released on bail during the

pendency of this appeal. Their bail bonds are discharged. They need

not surrender. In case they are not on bail, they shall be released

forthwith unless wanted in any other case.

Headnotes prepared by: Nidhi Jain Result of the case : Appeals allowed.

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:

[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.

SUPREME COURT REPORT: DIGITAL

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 

120 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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. 

122 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

(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.

SUPREME COURT REPORT: DIGITAL

(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, 

126 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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) ….

[2023] 12 S.C.R. 127

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, 

128 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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 

130 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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 

[2023] 12 S.C.R. 131

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? 

132 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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.

Service Law – Karnataka Civil Service Rules – r.252(b), r.20, Note 4 – Lien of a government servant on the previous post, when ceases to exist: Held: ‘Lien’ of a government servant only ceases to exist when he/she is appointed on another post ‘substantively’/confirmed or absorbed permanently – Otherwise, his/her lien would continue on the previous post – In the instant case, lien of the appellant on the previous post of ‘Office Superintendent’ is squarely protected and his lien shall be continued u/r.20, Note 4 as he was never appointed substantively on the new post of ‘Assistant Registrar’ and was continued temporarily on the said post subject to the outcome of the pending litigation challenging his appointment – This fact also finds support from the Preamble of the Resolution of the University dated 23.12.2000 – Further, the appointment of appellant to the new post was subject to probation of two years and due to pending litigation, he was continued on a temporary basis despite completion of two years – Further, in terms of r.252(b) relieving order cannot be treated as resignation – Thus, the finding recorded by the Writ Appellate Court not sustainable – Appellant entitled to all the service benefits including seniority, consequential promotions and pensionary benefits at par with his juniors, though notionally, since he superannuated on 30.06.2007 and has not worked on the promoted post – Impugned order set aside – Order passed by Single Judge restored subject to modifications. [Paras 17, 18, 20 and 22] Karnataka Civil Service Rules – r.20, Note 4 – Intention of: Held: As per r.20, Note 4, if a government servant seeks employment in another unit or department or in another cadre or grade in the same department under the Rules, his/her lien on the original appointment shall be continued to be maintained until absorbed in the department or cadre in which he/she is newly appointed. In case the employee is absorbed, he/she shall be entitled to the benefit of the past service for the purpose of leave and pension – Intention of the said rule is to protect the past service of the government servant in cases where the government servant is not confirmed or absorbed substantively on the new post on account of his/her failure to satisfactorily complete the probation period or for any other reason. [Paras 14 and 19]

[2023] 12 S.C.R. 104 : 2023 INSC 796

L.R. PATIL

v.

GULBARGA UNIVERSITY, GULBARGA

(Civil Appeal No. 3254 of 2013)

SEPTEMBER 04, 2023

[J. K. MAHESHWARI* AND K. V. VISWANATHAN, JJ.]

Issues for consideration: Whether the order passed by the

Respondent-University pursuant to r.252(b), Karnataka Civil Service

Rules, relieving the appellant to accept another appointment ought

to be treated as an order accepting resignation; and further on

facts, whether on joining the new post, the appellant’s lien on the

previous post will be maintained until he is permanently absorbed

in the new department in which he is subsequently appointed; and

lastly is the appellant entitled to the relief prayed.

Service Law – Karnataka Civil Service Rules – r.252(b), r.20,

Note 4 – Lien of a government servant on the previous post,

when ceases to exist:

Held: ‘Lien’ of a government servant only ceases to exist when

he/she is appointed on another post ‘substantively’/confirmed or

absorbed permanently – Otherwise, his/her lien would continue

on the previous post – In the instant case, lien of the appellant on

the previous post of ‘Office Superintendent’ is squarely protected

and his lien shall be continued u/r.20, Note 4 as he was never

appointed substantively on the new post of ‘Assistant Registrar’

and was continued temporarily on the said post subject to the

outcome of the pending litigation challenging his appointment –

This fact also finds support from the Preamble of the Resolution

of the University dated 23.12.2000 – Further, the appointment of

appellant to the new post was subject to probation of two years

and due to pending litigation, he was continued on a temporary

basis despite completion of two years – Further, in terms of r.252(b)

relieving order cannot be treated as resignation – Thus, the finding

recorded by the Writ Appellate Court not sustainable – Appellant

entitled to all the service benefits including seniority, consequential

promotions and pensionary benefits at par with his juniors, though

notionally, since he superannuated on 30.06.2007 and has not

* Author

[2023] 12 S.C.R. 105

L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA

worked on the promoted post – Impugned order set aside – Order

passed by Single Judge restored subject to modifications. [Paras

17, 18, 20 and 22]

Karnataka Civil Service Rules – r.20, Note 4 – Intention of:

Held: As per r.20, Note 4, if a government servant seeks

employment in another unit or department or in another cadre or

grade in the same department under the Rules, his/her lien on

the original appointment shall be continued to be maintained until

absorbed in the department or cadre in which he/she is newly

appointed. In case the employee is absorbed, he/she shall be

entitled to the benefit of the past service for the purpose of leave

and pension – Intention of the said rule is to protect the past service

of the government servant in cases where the government servant

is not confirmed or absorbed substantively on the new post on

account of his/her failure to satisfactorily complete the probation

period or for any other reason. [Paras 14 and 19]

Words and Phrases – ‘Lien’ – Discussed – Service Law.

Sitikanatha Mishra v. Union of India and Others, (2015)

3 SCC 670 : [2015] 1 SCR 16; Ramlal Khurana (Dead)

by Lrs. v. State of Punjab & Others, (1989) 4 SCC 99

: [1989] 3 SCR 680; Triveni Shankar Saxena v. State

of U.P. and Others, (1992) 1 Supp SCC 524 : [1991]

3 Suppl. SCR 534; State of Rajasthan and Another

v. S.N. Tiwari and Others, (2009) 4 SCC 700 : [2009]

4 SCR 448; State of Madhya Pradesh and Others v.

Sandhya Tomar and Another, (2013) 11 SCC 357 :

[2012] 11 SCR 839 – relied on.

Sanjay Gandhi Institute of Trauma & Orthopaedics v.

State of Karnataka and Others, Writ Appeal No. 596

of 2020 (S-RES) – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3254 of 2013.

From the Judgment and Order dated 23.10.2009 of the High Court

of Karnataka at Bangalore in WA No.10003 of 2009.

Ms. Hetu Arora Sethi, Arjun Basra, Advs. for the Appellant.

Sharanagouda Patil, Mrs. Supreeta Patil, Shubham Kunte for M/s.

S-legal Associates, Advs. for the Respondent.

106 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

The Judgment of the Court was delivered by

J. K. MAHESHWARI, J.

1. The appellant assails the tenability and validity of the judgment dated

23.10.2009 of the Division Bench of the High Court of Karnataka,

Circuit Bench at Gulbarga passed in W.A. No. 10003 of 2009, by

which the order passed by learned Single Judge on 27.08.2008 in

W.P. No. 4066 of 2006 allowing the petition holding that the appellant

had lien over his previous post and directing respondent-University

to pay service and pensionary benefits, was set-aside.

2. In the present case, the short questions of law which fall for

consideration are –

(i) Whether the order dated 08.04.1993 passed by the RespondentGulbarga University pursuant to Rule 252(b) of Karnataka Civil

Service Rules (for short “KCS Rules”), ‘relieving’ the appellant

to accept another appointment as ‘Assistant Registrar’ ought

to be treated as an order accepting ‘resignation’, to take up the

post on new assignment?

(ii) Whether in the facts of the case, on joining the new post, the

appellant’s lien on the original/previous post will be continued

to be maintained, until he is permanently absorbed in the new

department or cadre in which he is subsequently appointed?

(iii) Whether in the facts and circumstances of the case, the relief

as prayed by the appellant in the writ petition to consider him for

appointment on the post of Assistant Registrar in the previous/

original cadre at par with his juniors and consequential benefits

on retirement can be allowed? If yes, to what extent?

3. The undisputed facts are that, appellant was appointed on 10.08.1972

as Junior Assistant in Bangalore University. Later, he was transferred

to Gulbarga University on 21.07.1981 and promoted to the post of

‘Assistant Office Superintendent’. Eventually, vide office order dated

07.08.1987, appellant along with one ‘Sri. A. Raghavendra’ and other

serving Assistant Office Superintendents, were promoted to the post

of ‘Office Superintendent’ with immediate effect subject to satisfactory

completion of probation period of 1 year. The University by office order

dated 10.07.1990 declared that appellant had completed his probation

‘satisfactorily’ on 08.08.1988. In terms of the said declaration, the 

[2023] 12 S.C.R. 107

L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA

appellant was w.e.f. 07.08.1987, substantively appointed to the post

of ‘Office Superintendent’.

4. Subsequently, in 1993, the University invited applications for

appointment to the post of ‘Assistant Registrar’ via direct recruitment.

The appellant applied for the said post and was selected. As per

the terms of the appointment, the appellant had to serve as a

probationer for a period of two years, before he could be confirmed

on the said post. On his appointment, respondent-University vide

office order dated 08.04.1993 relieved the appellant from the post

of Office Superintendent w.e.f. 04.02.1993, and duly recorded that

he is being relieved to accept the another appointment as ‘Assistant

Registrar’ in the Gulbarga University. The order further recorded that

its contents shall be noted in the service book. The relevant extracts

of the aforesaid office order dated 08.04.1993 is being reproduced

for ready reference as under –

“No. GUG/ADM-1/92-93/273 Dated:- 8/4/1993

O R D E R

In pursuance with the Rule 252(b) of KSCR’s read with O.A. No. FD

263 SRS 71 dated 22.1.1972, Sri. L.R. Patil, Office Suptd. & P.S. to

Vice-Chancellor, Gulbarga University, Gulbarga has been relieved

from the duties on 4th Feb,’93 to accept another appointment as

Assistant Registrar in G.U. Gulbarga Vide T.O. Notification No.

referred to above (1).

Further, the contents of this order shall be noted in the Service Book

concerned.

REGISTRAR”

Pursuant thereto, the appellant joined on the post of Assistant

Registrar in the respondent-University.

5. Meanwhile, Mr. A. Raghavendra, filed Writ Petition No. 5364 of

1993 and challenged the appellant’s appointment on the ground of

discrimination and arbitrariness. During pendency of the said writ

petition, the respondent-University vide order dated 03.02.1996,

promoted ‘Sri. A. Raghavendra’ and ‘Sri Shankar Rao Kamble’ looking

to their seniority and posted them as Assistant Registrar, Examination

Branch and Assistant Registrar, Administrative Branch respectively.

It is pertinent to mention here that, on account of the pendency of 

108 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

aforesaid writ petition, the appellant continued on probation on the

post of Assistant Registrar. Thereafter, the High Court vide order

dated 24.06.1998 allowed Writ Petition No. 5364 of 1993 and

quashed the appointment of the appellant for reasons recorded in

the order. Aggrieved, the appellant and the respondent-University

filed separate Writ Appeals bearing Nos. 3261 of 1998 and 3246

of 1998 respectively, which came to be dismissed on 29.09.2000.

However, the Division Bench pending the admission of writ appeals,

stayed the operation of the order dated 24.06.1998 passed in Writ

Petition No. 5364 of 1993.

6. Pursuant to the dismissal of the writ appeals, the respondentUniversity in compliance of the orders, withdrew the appointment of

the appellant as Assistant Registrar vide office order dated 23.12.2000

(hereinafter referred to as “Resolution”) and retained/placed him

back in his previous post of ‘Office Superintendent’ with immediate

effect. The relevant portion of the Resolution is reproduced as thus:

“PREAMBLE

x x x x

The above matter was placed before the Syndicate meeting held on

14.7.1998 and it was decided to prefer W.A. before the Division Bench

of the Hon’ble High Court of Karnataka. Accordingly, the University

filed W.A. No. 3246/98 in the High Court in Addition to the W.A. No.

3261/98 filed by Sri L.R. Patil praying to set aside the order dated

24.6.1998 passed in W.P. 5364/93. The High Court passed an Interim

Order that the operation of the earlier order dated 24.6.1998 passed

in W.P. No. 5364/1993 was stayed pending admission of W.A.

The Division Bench of the Hon’ble Court of Karnataka has held in

its order dated 29th Sept. 2000 in both the W.A.s that the learned

Single Judge was right in quashing the order of appointment dated

4.2.1993 in respondent (sic) of Sri L.R. Patil as Assist. Registrar

in Gulbarga University, Gulbarga. There is neither irregularity nor

illegality in the order of the learned Single Judge. The above appeals

were dismissed by the High Court.

It is observed that Sri L.R. Patil, has not maintained the lien on

his previous post, i.e., Office Superintendent with the approval of

competent authority as required under General Rules 17 of K.C.S.Rs.”

[2023] 12 S.C.R. 109

L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA

7. In furtherance to the above said Resolution, the appellant was

retained in the previous post of Office Superintendent with immediate

effect and his fixation in the pay-scale was made accordingly. Soon

thereafter, on joining, the appellant submitted a representation dated

16.01.2001 to the University and sought ‘re-fixation of his seniority’ in

the cadre of Office Superintendent and further requested for promotion

on the vacant post of Assistant Registrar at par with his two juniors

namely ‘Sri. A. Raghavendra’ and ‘Sri. Shankar Rao Kamble’ who

were promoted to the post of Assistant Registrar by the respondentUniversity. On getting no response from respondent-University, the

appellant sent reminder letters dated 27.03.2001 and 20.04.2001,

however, neither any reply was given to appellant, nor any action

was taken by respondent-University.

8. Aggrieved by the indolence on the part of the respondent-University,

the appellant filed Writ Petition No. 22838 of 2001, which was disposed

of on 21.03.2005 with a direction to the University to consider the

representations/reminders of appellant and pass appropriate orders

in accordance with law within a period of four months affording due

opportunity of hearing to the appellant and other affected employees.

In compliance, respondent-University considered the case of appellant

and rejected his representation on 08.02.2006. In the meantime,

the appellant superannuated on 30.06.2007 from the post of ‘Office

Superintendent’.

9. Being aggrieved, the appellant filed Writ Petition No. 4066 of 2006

challenging the rejection order dated 08.02.2006 and prayed for

restoration of his seniority in the cadre of ‘Office Superintendent’ from

the date of his original appointment. The appellant also prayed for

consideration of his case for promotion at par with his juniors w.e.f.

03.02.1996, i.e., the date when they were promoted to the post of

Assistant Registrar.

10. The learned Single Judge vide order dated 27.08.2008 allowed the

writ petition and relying on the Resolution dated 23.12.2000 observed

that the services of the appellant did not get severed since he was

retained to the original post and maintained the lien in terms of the

Rule 20 Note-4 of KCS Rules. In other words, the learned Single

Judge was of the opinion that there was continuation of service on

the previous post as per said Rule, which states that if a government

servant has secured employment in the same or other Department 

110 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

and is subsequently relieved from the previous post to join the new

post, his lien on the previous/original appointment shall be continued

to be maintained till he is ‘permanently absorbed’ in the Department or

cadre in which he is newly appointed. However, regarding promotion,

it was observed by the Single Bench that since the appellant has

already superannuated from service, he may not derive the benefits

of promotion at par with juniors but would be eligible for monetary

benefits including pensionary and service benefits.

11. Challenging the said order dated 27.08.2008, respondent-University

filed Writ Appeal No. 10003 of 2009 and contended that the appellant

did not have a lien over the post of Office Superintendent and ceased

to have any association on the earlier post w.e.f. 04.02.1993 except

to the extent of leave and pension. The writ appeal vide impugned

order was allowed setting aside the order dated 27.08.2008 passed by

learned Single Judge dismissing the Writ Petition No. 4066 of 2006.

12. Learned counsel appearing for the appellant submits that in

furtherance to the Office order dated 08.04.1993, the past service of

the appellant was protected for pensionary and monetary benefits,

retaining his lien on the previous post and noted to record the said

contents in his service book in terms of the Rule 252(b) of KCS Rules

and Office Memorandum dated 22.01.1972. It is further contended that

Rule 20 Note 4 of the KCS Rules protects the lien of the appellant

until he is permanently absorbed on the new post. On account

of pending litigation, the appellant continued to be on probation

throughout and he was never confirmed substantively on the post

of Assistant Registrar. Ultimately, his appointment was quashed by

the High Court, whereafter, he was retained on his previous post of

his Office Superintendent. However, it is urged that on his retention

to the previous post, his past service cannot be washed away and

his lien cannot be negated during the vulnerable period in which he

was on probation in the new appointment. In support of the said

contention, the contents of the Resolution dated 23.12.2000 reappointing him as Office Superintendent was relied upon. In support

his submissions, counsel for the appellant placed reliance on the

judgment dated 25.02.2021 passed by Division Bench of High Court

of Karnataka at Bengaluru in Writ Appeal No. 596 of 2020 (S-RES)

titled “Sanjay Gandhi Institute of Trauma & Orthopaedics Vs.

State of Karnataka and Others” and “Sitikanatha Mishra Vs.

Union of India and Others, (2015) 3 SCC 670”.

[2023] 12 S.C.R. 111

L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA

13. Per contra, learned counsel representing respondent-Gulbarga

University has submitted that the appellant tendered his resignation

from the post of Office Superintendent to join as ‘Assistant Registrar’

and in pursuance of the same, he was relieved from his duties.

Therefore, in terms of Rule 252(b) of KCS Rules, it is to be treated

as ‘resignation’ from previous employment. It is further submitted

that, in absence of any representation made by the appellant seeking

preservation/maintenance of his lien on the previous post during the

pendency of litigation, he lost his right of lien and claim of seniority.

Therefore, rejection of his representation by respondent-University

on 08.02.2006 was in accordance with law and has been rightly

upheld by impugned judgment while setting aside the order of the

learned Single Judge.

14. Having heard learned counsel for the parties and considering the

nature of issues involved, we deem it appropriate to deal with the

questions as framed simultaneously. As the order dated 08.04.1993

relieving the appellant from the duties of Office Superintendent

was passed in pursuance to Rule 252(b) of KCS Rules and Office

Memorandum dated 22.01.1972, therefore, at the very outset, it is

necessary to refer the said Rule and Office Memorandum which are

reproduced as thus for ready reference –

“Rule 252(b) – Registration (sic ) of an appointment to take up,

with proper permission, another appointment, whether permanent

or temporary, service in which counts in full or in part, is not a

resignation of public service.”

“Office Memorandum No. FD 262 SRS 71 dated 22.1.1972

Under Rule 252(b) of KCSRs, resignation of an appointment to take

up with proper permission another appointment, whether permanent

or temporary service in which counts in full or part, is not resignation

from public service. A question has been raised whether in such cases

a separate sanction should be issued indicating that the resignation

has been accepted under the above provision, in order to enable the

audit/Administrative Officer to regulate the consequential benefits in

the matter of pay fixation, carry forward of leave, pension etc. The

matter has been considered and it has been decided that in cases

of the above type the order accepting the resignation should clearly

indicate that the employee is resigning to join another appointment 

112 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

with proper permission and that the benefits under Rule 252(b) ibid

will be admissible to him. The contents of the above order should

also be noted in the Service Book of individuals concerned under

proper attestation. The issue of any separate sanction is considered

not necessary.”

At this juncture, reference to Rule 20 Note 4 of KCS Rules is also relevant

and same is reproduced as under –

“Rule 20 Note 4 – When a Government servant who has secured

employment in one Department of Government under the rules of

recruitment, seeks employment on his own accord in another unit or

Department or in another cadre or grade in the same Department,

his lien on the original appointment shall be continued to be

maintained provided he has already been confirmed in the post till he

is permanently absorbed in the Department or cadre in which he is

newly appointed and he shall be given the benefit of the past service

for purposes of leave and pension. If, however, he is temporary in

the first appointment, he will cease to have any connection with his

old appointment but he shall be given only the benefit of the past

service for leave and pension.”

On perusal of the aforesaid Rule, it is clear that if a government servant

seeks employment in another unit or department or in another cadre

or grade in the same department under the Rules, his/her lien on the

original appointment shall be continued to be maintained until absorbed

in the department or cadre in which he/she is newly appointed. In case

the employee is absorbed, he/she shall be entitled to the benefit of the

past service for the purpose of leave and pension.

15. Coming to the facts in the present case, the appellant vide order

dated 08.04.1993 was appointed by the respondent-University as

Assistant Registrar and the said fact was duly noted in his service

book. His appointment was successfully challenged and resultantly

it was quashed by the High Court. Appeals against the said order

were dismissed. In view of dismissal of appeals, the respondentUniversity vide Resolution dated 23.12.2000 resolved to retain the

appellant back on his previous post i.e., ‘Office Superintendent’.

In this context, the ‘Preamble’ of the Resolution reveals that the

appellant was relieved to take up the new appointment on permanent

post with ‘formal permission’ from the competent authority to avail

the benefit of past service for the purpose of pension and leave as 

[2023] 12 S.C.R. 113

L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA

contemplated under Rule 252(b) KCS Rules. It is also subsequently

noted in the Resolution that during the pendency of appeal against

the order quashing the appellant’s appointment, the Division Bench

of the High Court passed an interim order and stayed the operation

of the order of learned Single Judge quashing the appointment

pending admission of appeal. In the said perspective, it is apparent

that, subject to pending litigation assailing the appellant’s appointment

as Assistant Registrar, he throughout continued to be on the post

of Assistant Registrar as probationer and was never confirmed or

was permanently absorbed on the said post. Be that as it may, if

the appellant was never permanently absorbed or confirmed on the

post of ‘Assistant Registrar’, then as per mandate of Rule 20 Note

4 of KCS Rules, his lien shall continue on the original post of the

Office Superintendent.

16. On the said issue, the law has been well-settled by this Court in the

case of “Ramlal Khurana (dead) by Lrs. Vs. State of Punjab &

Others, (1989) 4 SCC 99”, wherein this Court observed that ‘lien’ is

not a word of art and it connotes the right of a civil servant to hold

the post substantively to which he is appointed, meaning thereby,

the appointment of government servant on the said post must be

substantive as he/she cannot hold two posts simultaneously in two

different cadres and maintain lien on both of them at the same time.

Further, in the case of “Triveni Shankar Saxena Vs. State of U.P.

and Others, 1992 Supp (1) SCC 524”, while primarily dealing

the question of acquisition of lien, this Court has observed that a

person can be said to acquire a lien on a post only when he has

been confirmed and made permanent on that post and not earlier.

17. In a 3-Judge Bench judgment in the case of “State of Rajasthan

and Another Vs. S.N. Tiwari and Others, (2009) 4 SCC 700”, while

interpreting the word ‘lien’ against the post appointed substantively

with respect to another post, this Court held as thus:

“17. It is very well settled that when a person with a lien against

the post is appointed substantively to another post, only then he

acquires a lien against the latter post. Then and then alone the lien

against the previous post disappears. Lien connotes the right of a

civil servant to hold the post substantively to which he is appointed.

The lien of a government employee over the previous post ends if

he is appointed to another permanent post on permanent basis. In 

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SUPREME COURT REPORT: DIGITAL

such a case the lien of the employee shifts to the new permanent

post. It may not require a formal termination of lien over the previous

permanent post.”

Similarly in the case of “State of Madhya Pradesh and Others Vs.

Sandhya Tomar and Another, (2013) 11 SCC 357”, this Court held

that the lien is a civil right of a civil servant to hold the post to which he

is appointed substantively. The relevant part of the order is reproduced

below as thus –

“10. “Lien” connotes the civil right of a government servant to hold

the post “to which he is appointed substantively”. The necessary

corollary to the aforesaid right is that such appointment must be in

accordance with law. A person can be said to have acquired lien

as regards a particular post only when his appointment has been

confirmed, and when he has been made permanent to the said post.

“The word ‘lien’ is a generic term and, standing alone, it includes

lien acquired by way of contract, or by operation of law.” Whether

a person has lien, depends upon whether he has been appointed

in accordance with law, in substantive capacity and whether he has

been made permanent or has been confirmed to the said post.”

All the aforesaid judgments have been duly considered again by this Court

in another 3-Judge Bench judgment in the case of Sitikanatha Mishra

(supra). Thus, as per settled legal position, we observe that ‘lien’ of a

government servant only ceases to exist when he/she is appointed on

another post ‘substantively’/confirmed or absorbed permanently. Otherwise,

his/her lien would continue on the previous post.

18. Reverting to the instant case, on a conjoint reading of the Rules

applicable, i.e., Rule 252(b), Rule 20 Note 4 and Office Memorandum

dated 22.01.1972 in consonance with the settled law as discussed,

we are of the considered view that the lien of the appellant on

the previous post of ‘Office Superintendent’ is squarely protected

and his lien shall be continued under Rule 20 Note 4. We say

so particularly because of the fact that the appellant was never

appointed substantively on the new post of ‘Assistant Registrar’ and

was continued temporarily on the said post subject to the outcome

of the pending litigation challenging his appointment. The said

fact also finds support from the Preamble of the Resolution of the

University dated 23.12.2000. Further, the appointment of appellant 

[2023] 12 S.C.R. 115

L.R. PATIL v. GULBARGA UNIVERSITY, GULBARGA

to the new post was subject to probation of two years and due to

pending litigation, he was continued on a temporary basis despite

completion of two years. Nothing has been brought on record by

respondent-University to negate the applicability of mandate of Rule

20 Note 4 of KCS Rules on appellant.

19. Further, it is not the case of the respondent-University that the

appellant was permanently absorbed or confirmed on the new

post. Conversely, the respondent’s case is that, in absence of any

representation made by the appellant seeking continuation of his

lien on the previous post, he cannot claim it subsequently on being

retained after quashing of his appointment. In our view, the said

stand of the University cannot be countenanced in terms of Rule

20 Note 4 of KCS Rules. As per the language of the said Rule, the

lien of a government servant on the previous post stands protected

till his or her continuation on probation period on the new post. The

intention of the said rule is clear, viz., to protect the past service of

the government servant in cases where the government servant is

not confirmed or absorbed substantively on the new post on account

of his/her failure to satisfactorily complete the probation period or

for any other reason.

20. So far as question of the ‘relieving order’ being treated as resignation

is concerned, in terms of Rule 252(b) of KCS Rules, it cannot be

treated as resignation. The said Rule makes it clear that if another

appointment is taken up by a government servant with proper

permission, then it cannot be termed as resignation of public service.

Thus, the finding as recorded by the Writ Appellate Court are not

sustainable.

21. In view of the discussion made herein above, we answer the questions

framed above as follows –

(i) Order dated 08.04.1993 passed by respondent-University,

relieving the appellant to take up the new appointment as

‘Assistant Registrar’ is not to be treated as resignation in terms

of Rule 252(b) of KCS Rules.

(ii) The appellant’s lien on the original/previous post of ‘Office

Superintendent’ shall be maintained and deemed to be continued

from the date when he was relieved by respondent-University,

i.e., 08.04.1993.

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(iii) Considering the facts and circumstances of the case and in order

to do complete justice, the appellant will be entitled to all the

service benefits including seniority, consequential promotions

and pensionary benefits at par with his juniors, though notionally,

since he superannuated on 30.06.2007 and has not worked on

the promoted post.

22. Accordingly, the appeal is allowed and the impugned order dated

23.10.2009 passed in Writ Appeal No. 10003 of 2009 (S-RES) is

hereby set-aside. The order dated 27.08.2008 passed by learned

Single Judge in Writ Petition No. 4066 of 2006 is restored subject

to the above modifications. No order as to costs.

Headnotes prepared by: Divya Pandey Result of the case : Appeal allowed.