HARGU LAL GAUTAM Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner joined as a Constable in the Border Security Force on 9.8.1980. He was first posted to Head Quarter 80 Battalion from where, on promotion, he was transferred to Head Quarter 63 Battalion on 15.3.1991. It is stated that on 16.3.1993 when the petitioner was deputed at Barmer, Rajasthan, the petitioner attacked a constable M. Murti with a sharp-edged weapon i.e. Gandasa, at his neck and head. As a result of this attack the constable suffered injuries on his head, neck and wrist. The petitioner was apprehended after the incident from his barrack and was arrested and detained at Quarter Guard. Thereafter, vide order dated 16.3.1993, the petitioner was placed under close arrest and the matter was reported to P.S. Kotwali Barmer. The petitioner was charge sheeted and tried by General Security Force Court of the BSF for an offence committed under Section 46 of the Border Security Force Act, to say attempt to murder punishable under Section 307 of the Indian Penal Code. He was tried by General Security Force Court and Sh. K.N. Sual, the Deputy Commandant of STC BSF, Kharkan Camp, was appointed as the Defending Officer. It is stated that on 10.9.1996, the respondents complied with the basic requirements of Rule 63 of the BSF Rules, 1969 only on paper and in fact, no proper opportunity was afforded to the petitioner to defend himself. According to the petitioner, he was deprived of his valuable right to defend himself in the General Security Force Court for the alleged offence. It is further stated that the prosecution was conducted by Sh. V.K. Kanda, JSO, an expert in law and the petitioner was not permitted to be defended by an expert. Finally, after confirmation of sentence against the petitioner, the petitioner was terminated from service on 7.3.1997 i.e. with effect from the date of promulgation of sentence and findings against the petitioner. According to the petitioner the Defending Officer, Sh. K.N Sual, was forced upon the petitioner and he did not defend the petitioner properly, resulting in conviction of the petitioner. The order dated 7.3.1997 is questioned by the petitioner in the present writ petition on the ground that the same is arbitrary, illegal, in violation of the prescribed Rules and procedure.

(2.) The respondents filed a counter affidavit where they have stated as under:-

(3.) To the counter affidavit of the respondents, no rejoinder was filed by the petitioner refuting the facts averred in the counter affidavit. The charge against the petitioner reads as under:-