Gulzar Hussain vs Union of India (UOI) and Others

Sunil Hali, J.—While the petitioner was posted in 132 Bn. BSF, he was charge sheeted u/s 46 of the BSF Act for committing a civil offence

i.e. to say causing death by rash and negligent act u/s 304-A RPC. The petitioner while driving B.S.F. vehicle rashly and negligently caused

accident which resulted into death of a civilian. He was tried by the Petty Security Force Court, the conclusion of which resulted in dismissal of the

petitioner from service vide order dated 12.04.2001. It is this order which is subject matter of challenge in the present writ petition.

I have heard Learned Counsel for the parties and perused the record.

BSF Act and Rules is a Code in itself and provides mechanism and procedure in respect of Court Martial proceedings. In every disciplinary

matter, the court of inquiry is required to be held and offence report is prepared under Rule 43 of the BSF Rules, which shall be reduced in writing

in the form set out for the purpose. This is followed by a charge sheet under Rule 44. The charge sheet so prepared is to be heard by the

Commandant and after hearing the charge sheet, the Commandant may award punishment, which he is empowered to do so or dismiss the charge,

or remand the accused for trial by a Summary Security Force Court. The framing of charge sheet is followed by Record of Evidence (ROE) in

terms of Rule 48. While preparing ROE, the evidence is recorded by the prosecution and the accused is given an option to examine the defence

witnesses. After recording of ROE and for having committed a civil offence, a person is liable to be tried by the Security Force Court. The

application of aforementioned provisions of the BSF Act and Rules are germane for determination of the present controversy.

The petitioner has claimed that there have been irregularities in the conduct of the Court Martial proceedings. He has essentially questioned the

findings of the Court Martial on the following grounds:

(a) That no court of inquiry was conducted as envisaged under Rules 170 to 176 of the BSF Rules. The offence report as required under Rule 43

has not been prepared so far;

(b) That while ROE was prepared, neither the statements of the witnesses were recorded in presence of the accused nor an opportunity was given

to him to make the statement under Rule 49;

(c) That while the petitioner was tried by the Security Force Court, the Defending Officer was required to be provided which has not been done in

the present case. In essence, it is stated that the petitioner has been denied the right of seeking assistance of the Defending Officer;

(d) That while the accused was remanded for trial, he was required to be afforded proper opportunity for preparing his defence and proper

communication with his defending officer or Counsel and with his witnesses. No such opportunity as envisaged under Rule 63 has been given to the

petitioner;

(e) That the punishment awarded is harsh and disproportionate. The DIG, BSF Rajouri was not competent officer to confirm the proceedings of

the Court Martial.

In reply, the respondents have stated that the court of inquiry was ordered by the SHQ BSF Rajouri vide order dated 9th June, 1999. On the

basis of the findings of the Staff Court of Inquiry, Record of Evidence was prepared vide order dated 07.07.2000. Accordingly on the basis of the

pretrial advice on ROE, the Petty Security Force Court was convened against the petitioner u/s 46 of BSF Act. On the basis of findings of Staff

Court of Inquiry, the petitioner was put up on offence report and after hearing the charge under Rule 45 of the BSF Rules, the Commandant

ordered a Record of Evidence. On the basis of pretrial advice on the ROE, the Petty Security Force Court was convened against the petitioner u/s

46 of the BSF Act for rashly and negligently driving the BSF vehicle and causing death of a civilian.

I have perused the record. It is revealed from the record that offence report was prepared by P.C. Sharma, Commandant 132 Bn. BSF. The

Record of Evidence prepared reveals that the statement of the witnesses have been recorded. Seven prosecution witnesses were examined but

accused has declined to cross-examine them. He did not make any statement in terms of Rule 48(4) of BSF Rules. He failed to produce the

defence witnesses, which is clearly revealed from the record prepared by the respondents. All the statements recorded by the respondents were

read over to the petitioner and the independent witnesses in Hindi and English language.

The ROE was submitted to the Commandant on 31.07.2000 and charge sheet was issued on 09.02.2001.The petitioner has acknowledged the

receipt of following documents:

(a) Typed copy of ROE proceedings along with its exhibits;

(b) A copy of charge sheet dt. 09.02.2001;

(c) Convening Order of PSFC signed by DIG BSF Rajouri dated 29.03.2001; and

(d) SHQ BSF Rajouri order dated 29.03.2001 regarding derailment of defending officer.

Defending Officer was also provided as required under Rule 122 of the BSF Rules and during the trial nine prosecution witnesses were

examined out of which accused cross-examined PW-1 to 5 and 7 and 9 but declined to cross-examine PW-6 and PW-8. The opportunity to

produce the defence witnesses was declined as it is revealed from the record of Court Martial. The statement of accused was also recorded. The

record clearly reveals that there was no violation of any of provisions of Rules 65, 66, 69, 73 and 83 of the BSF Rules.

After scanning through the evidence, the contention raised by the Learned Counsel for the petitioner is not well founded and is contrary to the

record.

The Court Martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution. These, however, are not

subject to superintendence of the High Court under Article 227 of the Constitution. Since the BSF Act and Rules provide entire procedure, the

findings arrived at by the competent authority in the Court Martial proceedings have to assume its finality. Notwithstanding the finality attached to

the orders of the competent authority in the Court Martial proceedings, the High Court is entitled to exercise its power for judicial review by

invoking jurisdiction under Article 226 of the Constitution for a limited purpose to find out infraction in the mandatory provisions of the Act

prescribing the procedure which has caused prejudice or gross mis-carriage of justice. The High Court is not to act as appellate court for the

purpose of re-appreciating the evidence reduced in the proceedings.

It is to be noted that only such procedural irregularities which cause prejudice or miscarriage of justice alone can be reviewed by this Court. It

is to be understood that the conclusion of the Court Martial proceedings by the Petty Security Force Court would determine the fate of the officer

facing the same. Noncompliance of the procedure which adversely affects the rights of a person will be fatal to the outcome of the trial. The pre-

trial proceedings which include recording of ROE will not have the effect of depriving the opportunity or any other right of the petitioner. The

object and effect of rules should be considered in the context bearing in mind the general principle whether any such incomplete compliance has

caused any prejudice to the delinquent officer. However, if there is any violation of the mandatory rules, the necessary benefit of the same should

be given to the delinquent.

Applying the aforesaid principles of law in the present case, it would be seen that pre-trial proceedings have been substantially complied with.

The main contention regarding the pretrial stage was that no court of inquiry was conducted and the procedure provided under Rules 43, 44 and

45 of the BSF Rules has not been complied with. There is no evidence from the record suggested by the petitioner that there has been non-

compliance in the procedure except bald assertion made in the pleadings in this regard.

The contention regarding non-compliance of the requirement of the Rules during trial by the Court Martial are confined to the extent that no

Defending Officer was provided to the petitioner and regarding violation of the provisions of Rules 65, 66, 69, 73 and 83 of the BSF Rules it is

clearly indicated from the record that the Defending Officer was provided to the petitioner as required under Rule 122 of the BSF Rules and there

is no violation of other Rules indicated hereinabove. It, however, be noted that it merely stating that there has been violation in complying with the

procedure provided under the Act and Rules, it must be specifically stated that what prejudice has been caused to the petitioner in this regard. The

observance of the rules of natural justice is not merely ritual unless prejudice and adverse effect of its non-compliance is specifically pleaded. The

rules of natural justice are not enshrined in any statute requiring that the parties shall be heard. Natural justice is a great humanizing principle

intended to invest law with fairness and to secure justice. It is widely pervasive rule affecting large areas of administrative action. I find no such

averment in the pleadings of the petitioner.

The other contention raised by the petitioner was that DIG, BSF, Rajouri was not empowered to convene Petty Security Force, in this

respect, the respondents have produced a copy of the order dated 23.02.1987 issued by the Inspector General Border Security Force, Jammu

which confers the power upon the DIG, BSF, Rajouri for convening of the Petty Security Force Court. Another contention raised that the

punishment awarded is disproportionate to the nature of offence committed by the petitioner cannot be invoked in the proceedings under Court

Martial.

For the reasons stated hereinabove, I find no force in this writ petition. The same is, accordingly, dismissed along with connected CMP(s) if

any.