HARGOVIND SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ application under Art. 226 of the Constitution of India, the petitioner, Sri Hargovind Singh, has challenged the findings of the General Security Force Court, and the orders passed by the Inspector General of Border Security Force and the Director General of Border Security Force holding the petitioner guilty of the offence of culpable homicide (not) amounting to murder as well as the punishment of 5 years' rigorous imprisonment and dismissal from service.

(2.) The facts briefly are that the petitioner was serving as a constable in the 13 Bn. Border Security Force. A General Security Force Court was convened to enquire into the allegation against the petitioner that on 8-7-1998 between 1730 Hrs. and 1800 Hrs. when the petitioner and other members of a Link Patrol Party were returning to BOP Bhandarima, the petitioner directed constable Puran Singh to cross the river Deo, and when constable Puran Singh started crossing the river Deo the petitioner remarked "Kya aap ladki hai jo pani se darte hain", and constable Puran Singh became angry and exchanged abuses with the petitioner and after crossing the river went to the petitioner and slapped on his left cheek and thereafter there was a scuffle between them and during the scuffle the petitioner fell down on the ground and constable Puran Singh sat on the chest of the petitioner and beat him mercilessly. The two were separated by constable Desh Raj and they took up their respective rifles and were about to proceed further when the petitioner suddenly cocked his rifle and fired one round at constable Puran Singh and the bullet hit constable Puran Singh on the right side of his bally and constable Puran Singh fell down on the ground. Thereafter, constable Puran Singh was picked up and taken away to BOP, Bhandarima, but on the way he succumbed to his injury. At the end of the proceedings in which several witnesses were examined and documents produced, the General Security Force Court, (for short, "GSF Court"), found the petitioner guilty of civil offence of murder under Section 302, Indian Penal Code, and on Dec. 7, 1999 imposed the sentence of imprisonment for life and dismissal from service on the petitioner. The petitioner submitted a petition dated Dec. 11, 1999 under sub-section (1) of Section 117 of the Border Security Force Act, 1968, (for brevity, "the BSF Act") to the Confirming Authority pointing out some irregularities in the proceeding before the GSF Court and the illegality in the order passed by the GSF Court. The Confirming Authority, namely, Inspector General, TC and M. Frontier HQs, BSF, afer considering the said petition held in his communication dated 31/03/2000 to the petitioner that there was no violation of any legal or constitutional provision during the trial and that the proceedings have been conducted in accordance with the provisions of the BSF Act and the Rules made thereunder and no interference was therefore warranted on the grounds raised in the petition of the petitioner. He, however, held in the said communication dated 31/03/2000 to the petitioner that there was evidence to show that there was sudden fight between the petitioner and the deceased constable Puran Singh and the offence took place in the heat of passion upon a sudden quarrel and without any pre-meditation and, therefore, the offence fell within the exception-4 of Section 300, IPC, punishable under Section 304, IPC. The Confirming Authority thus held the petitioner guilty of the offence of culpable homicide not amounting to murder and reduced the quantum of sentence from life imprisonment to 10 years'rigorous imprisonment. The order passed by the Confirming Authority under sub-sec. (1) of Section 117 of the BSF Act was conveyed by the Commandant, 13 Bn. BSF to the Superintendent of Agartala Prison, Tripura with the request to receive and keep the petitioner in custody for undergoing the sentence of 10 years' rigorous imprisonment. The petitioner then submitted a petition dated 20/07/2000 under sub-section (2) of Section 117 of the BSF Act to the Director General of Border Security Force pointing out the iregularities in the proceedings before the GSF Court as well as the illegality in the order of conviction. While the said petition under sub-sec. (2) of Section 117 of the BSF Act was pending, the petitioner moved this Court in Writ Petition (Civil) No. 462 of 2000 and on 30/10/2000 this Court while issuing notice in the said writ petition observed that an endeavour would be made by the Authority before whom the petition under sub-sec. (2) of Section 117 of the BSF Act was pending to dispose of the same within two months. Pursuant to the said observation of this Court, by a communication dated 12/12/2000 the petitioner was informed that his petition dated 20/07/2000 addressed to the Director General, BSF, against his conviction by the GSF Court had been considered by the Director General and it had been observed that there was no violation of any legal or constitutional provision during his trial by the GSF Court and that the proceedings had been conducted in accordance with the provisions of the BSF Act and the Rules made thereunder. In the said communication dated 5/12/2000, the petitioner was further informed that the evidence in the proceedings disclosed that there was a sudden fight between the petitioner and the deceased constable Puran Singh and the offence took place in the heat of passion upon a sudden quarrel without any pre-meditation, and considering all these facts and the young age of the petitioner, the Director General, BSF, was further pleased to reduce the term of rigorous imprisonment of 10 years to 5 years but there was no change with respect to his dismissal from service. On 18/10/2000, this Court passed orders in W.P. (C) 462/2000 to the effect that since the petition of the petitioner under sub-sec. (2) of Section 117 of the BSF Act had been disposed of by the Confirming Authority no relief could be granted in the said petition and the writ petition was disposed of as having become infructuous, and the petitioner may move against the order dated 5/12/2000 of the Director General , BSF, in an appropriate forum. The petitioner has, therefore, filed this writ petition under Article 226 of the Constitution praying for quashing the findings and sentence of the GSF Court and the orders dated 31/03/2000 and 12/12/2000 passed by the Inspector General, BSF and the Director General, BSF respectively under sub-sections (1) and (2) of Section 117 of the BSF Act.

(3.) Mr. K. N. Bhattacharjee, learned senior counsel appearing for the petitioner, submitted that under Rule126 of the Border Security Force Rules, 1969, (hereinafter referred to as "the BSF Rules"), the Law Officer has been entrusted with certain duties in relation to a proceeding before the GSF Court. He submitted that the GSF Court comprises of persons who are not well versed in law and requires guidance of a law-knowing person while conducting the proceeding. It is for this reason that sub-rule (1) of Rule 126 of the BSF Rules entrusts certain duties on the Law Officer to give his opinion on any question of law relating to the charge or trial whenever so required by the Court, the prosecutor or the accused; inform the Court of any irregularity or other infirmity in the proceedings; inform the Convening Officer and the Court of any infirmity or defect in the charge or in the constitution of the Court; and to sum up the evidence and give his opinion on any question of law, before the Court proceeds to deliberate upon its findings. He further submitted that sub-rule (2) of Rule 126 of the BSF Rules further provides that it is the duty of the Law Officer to ensure that the accused does not suffer disadvantage in consequence of his position as such, or because of ignorance or incapacity to examine or cross-examine witnesses. Mr. Bhattacharjee referred to sub-rule (3) of Rule 126 of the BSF Rules which provides that in the discharge of his duties, the Law, Officer shall maintain an attitude of strict impartiality. Mr. Bhattacharjee argued that in course of the proceedings, the Law Officer committed breach of these duties entrusted to him under Rule 126 of the BSF Rules and for this reason the proceedings before the GSF Court suffered grave defects and were not impartial, and the petitioner has suffered conviction and sentence not warranted by law. In this context, Mr. Bhattacharjee submitted that it would be clear from the records of the proceedings of the GSF Court that in course of cross-examination of PW- 5/11/1999 some suggestions wee put on behalf of the petitioner by way of denial, but the shall suggestions had not been recorded, and when a petition was filed before the GSF Court by the petitioner on 17/11/1999, the Law Officer did not advise the Court properly and instead opined that sufficient opportunity was provided to the petitioner to cross-examine PW-5. Mr. Bhattacharjee further pointed out that there were discrepancies in the evidence of PW 10, Ballastic Expert and in the evidence of PW-6, Mahinder Singh, Commander of the party. Whereas, PW-10 in his evidence stated that the body mechanism of the Rifle with which constable Puran Singh was alleged to have been killed was not found sealed when it was received in the Laboratory and only muzzle end of the Rifle was sealed, PW-6 in his evidence stated that after checking the rifle he had sealed all the three magazines and also the entire body mechanism of the Rifle. These material discrepancies in the evidence of PW-10 and PW-6 had not been pointed out by the Law Officer to the Court while summing up the evidence on 7/12/1999. Mr. Bhattacharjee submitted that Rule 120 of the BSF Rules provides that the proceedings shall be deemed to be in the custody of the Law Officer and may be inspected by the members of the Court, the prosecutor and accused at all reasonable times before the Court is closed to consider the finding and the petitioner made a prayer in his petition dated 25/11/1999 before the GSF Court requesting that the evidence dictated and typed in the open Court be allowed to be inspected by the defence counsel/defending officer in open Court, but the Law Officer instead of advising the Court to allow the said prayer of the petitioner advised the Court that the submission of the defence did not hold ground and the same was disallowed. Mr. Bhattacharjee submitted that PW-3 in his evidence stated that after he separated the petitioner and constable Puran Singh he snatched away the Rifle from the petitioner. This evidence would show that the Rifle from the hand of the petitioner was taken away by PW-3 and the petitioner could not have fired at constable Puran Singh, and this material piece of evidence should have been brought to the notice of the Court by the Law Officer, but while summing up the evidence on 12/12/1999, the Law Officer did not point out this material piece of evidence to the Court. Mr. Bhattacharjee also referred to the evidence of PWs-1 to 4 who stated that at the time of incident they were at BOP Bhandarima. He submitted that they were not the eye witnesses to the incident and yet they have deposed as if they had seen the incident. This aspect of the evidence has not been brought to the notice of the GSF Court at the time of summing up the evidence on 12/12/1999 by the Law Officer. He further argued that the prosecution relied on the confession of the petitioner given before PW- 8/07/1998, but a reading of the evidence of PW-8 would show that the said confession was not voluntary but under coercion and hence the confession was hit by Section 24 of the Indian Evidence Act and could not be relied upon for the purpose of convicting the petitioner, and yet this aspect of law was not pointed out by the Law Officer to the Court at the time of summing up the evidence on 7/12/1999. He also referred to the evidence of PW-9, Doctor, who stated that the injury in the abdomen of constable Puran Singh was such that he may die instantly and argued that it was not possible for him to have given a dying declaration relating to cause of his death. This was also not pointed out by the Law Officer at the time of smming up the evidence to the Court on 7/12/1999. Mr. Bhattacharjee further argued that in his cross-examination PW-7 has stated that on 11/07/1998 the place of occurrence was shown to him by one civilian, namely, Nabin Muni Reang and during investigations he recorded the statements of Nabin Muni Reang and Ganga Ram Reang, who were eye witnesses to the incident, and yet the said eye witnesses have not been examined. He argued that Nabin Muni Reang and Ganga Ram Reang were the civilian eye witnesses whose evidence was very material and the fact that the said two civilian eye witnesses have been withheld was an important factor in favour of acquittal of the petitioner, but this position of law was not pointed out by the Law Officer to the GSF Court while summing up the evidence on 12/12/1999. He cited the decision of the Supreme Court in Meharaj Singh v. State of U.P., (1994) 5 SCC 188 : (1995 Cri LJ 457), wherein it has been held that where prosecution has failed to produce eye witnesses, it can be presumed under Section 114, Illustration-(g) of the Evidence Act, that the eye witnesses have not been produced as they were not prepared to support the false case. Mr. Bhattacharjee vehemently argued that the Law Officer failed to act impartially and did not ensure that the accused-petitioner was not put to any disadvantage in consequence of his position and by such failure on the part of the Law Officer to act impartially in breach of his duties under Rule 126 of the BSF Rules, the whole trial before the GSF Court was vitiated, and the trial and findings of the GSF Court are liable to be quashed. He cited the decision of Punjab and Haryana High Court in Hardev Singh v. Union of India, 2000 Cri LJ 2585, in support of his aforesaid submission. He also relied on the decision of the Delhi High Court in R. S. Bhagat v. Union of India, AIR 1982 Delhi 191 : (1981 Lab IC 617), in which the trial before the Court Martial under the Army Act was held to be bad for, inter alia, the reason that there was misdirection by the Judge-Advocate relating to erroneous conclusion of law and fact reached by the Court Martial. Mr. Bhattacharjee pointed out that in the present case similarly on account of mis-direction by the Law Officer, the GSF Court has arrived at an erroneous conclusion of law and fact, and this Court in exercise of its power under Article 226 of the Constitution should quash the findings of the GSF Court as confirmed by the Confirming Authority and the Superior Authority under Sections 117 (1) and (2) of the BSF Act.