UNION OF INDIA Vs. O P BISNOI

JUDGEMENT

(1.) The appellants by this petition under clause 10 of the Letters Patent Act, 1907seek to challenge the judgment and order dated 11/04/1994 passed by the learnedSingle Judge in Writ Petition No. 2435 of 1991 whereby the learned Single Judge setaside the finding of the General Security Force Court and allowed the writ petition.The prayers in the writ petition were - (a) lor a writ, order or direction in the nature ofceritorari quashing the proceedings conducted by the General Security Force Courtagainst him and; (b) direct the appellants to reinstate the respondent in service withall consequential benefits.

(2.) The case before the learned Single Judge was that the respondent was tried byGeneral Security Force Court on a charge under Section 31(b) of the Border SecurityForce Act (for short the Act) namely :- without proper authority extact from any person money wherein he was convicted and sentenced to dismissal from service. Thechallenge to the order of dismissal from service was made, inter alia, on the groundthat the trial was void ab initio because the Commandant of the appellant herein was awitness for the prosecution in the trial before the General Security Force Act. TheCommandant having dealt with the case under Rule 45 of the Border Security ForceRules, 1969 (for short the Rules') was debarred under Rule 46 from being a witnesswhich, in turn, vitiated the ial. Further grounds of challenge are set out below:"( i) Non-compliance of the mandatory provisions of B.S.F. Rule 45.(ii) Serious mis-directions on questions of fact as well as law, by the Law Officer who had acted as an adviser at the trial, in his final 'summing up' to theCourt, which resulted in serious prejudice to the accused (petitioner).(iii) Total absence of evidence about the factum of recovery and/or taking ofany money from the alleged victim by the petitioner, the graveness of thecharge. So much so that the said victim was never even examined before orat the impugned trial. Not only that even none of the prosecution witnesseshas deposed that they had seen the petitioner extorting money from the victim, as alleged.(iv) Admissions of inadmissible alleged confessional statements of thepetitioner given to his superiors under duress, contrary to Section 24 of theEvidence Act.(v) Absence of independent corroboration of above statements in materialparticulars.(vi) Absence of independent corroboration of accomplice evidences, inmaterial particulars. (vii) Singling out the petitioner for prosecution bailing out the real culpritswho had admitted having taken and shared the money among themselves.(viii) None of the officers mentioned by the petitioner to act his DefendingOfficer interms of B.S.F Rule 63 was made available mala fidely. Thiscaused serious prejudice to the petitioner in defending himself at the impugned trial."

(3.) The learned Single Judge, while dealing with the matter, was of the view that ofthe numerous grounds of challenge, two grounds were sufficient to set aside the Findings ol the General Security Court Force. In the impugned judgment the learnedSingle Judge takes note of the facts of the case as foltows:-"The petitioner joined the Border Security Force as direct Sub-Inspector inDecember, 1987. He completed his basic training and thereafter he wasposted on Bengal border for undertaking practical training. In February,1989 the petitioner was sent to border out-post for doing practical trainingunder the guidance of one Naik Sheo Prasad where within two days of hisposting he apprehended a Bangladesh national, Nurul Islam, who was attempting to cross over to India. Nurul Islam was brought to the post in thepresence of other Border Security Force personnel and tocal villagerswhere he was physically searched."The learned Single Judge notes that :-"According to the pelilioner, nothing was found. However, the foreignerwas pushed back by the petitioner at the instance of Naik Sheo Prasad (PW-6). The allegation against the petitioner is that he extorted a sum of 4,000Bangladesh currency and, after having them converted into Indian rupees.distributed the same amongst the colleagues and subsequently collected theamount back.The Commandant of the Battalion conducted the proceedings and lateireferred the mailer to higher authorities for convening General SecurityForce Court. Several witnesses were examined by the prosecution as well asby the defence. Ultimately the General Security Force Courl came to theconclusion that the charge against the petitioner stood proved and by way ofpunishment ordered dismissal from service. Statutory appeals, as providedunder the Act, were made but all failed and, therefore, the petitioner movedthe High Courl by way of the Writ Petition."