UNION OF INDIA Vs. ZAKARIA AHMED

JUDGEMENT

(1.) Heard Ms. Zairemsangpuii, learned CGC for the appellants and Mr. B. Lalramenga, learned counsel for the respondents.

(2.) This appeal has been filed against the Judgment and Order dtd. 25/2/2022 passed by the learned Single Judge in WP(C) No. 150/2019, which had set aside the impugned order of dismissal dtd. 1/3/2019, issued by the Commandant, 1st Battalion BSF, on the ground that the General Security Force Court (GSFC) Order dtd. 7/12/2018, which came to a finding that the respondent was guilty of the charge punishable under Sec. 10 of the POCSO Act, 2012 did not convict the appellant, as the word "convicted" was absent in the impugned order. The learned Single Judge followed the judgment of a Co-ordinate Bench of this Court in the case of Rajib Choudhury Vs. Union of India and Ors., reported in 2015 (1) GLT 185 , wherein it held that the finding recording the opinion of the Court that the accused was guilty of the charge did not crystalize into an order of conviction, unless there was an order of conviction.

(3.) The brief facts of the case is that the respondent, who was a Constable in the Border Security Force (CSF), was found to have molested a 12 year old girl by forcibly touching her breast. Thereafter, on the basis of a complaint and an enquiry conducted, proceedings were initiated against the respondents before the GFSC. The GFSC came to a finding that the respondent was found guilty of the charge under Sec. 10 of the POCSO Act, 2012. However, without convicting the respondent and using the word "convicted" the respondent was sentenced to suffer imprisonment for 5 years and also dismissed from service. The respondent filed a pre-confirmation petition dtd. 12/12/2018 against his sentence by the GSFC. The pre-confirmation petition was rejected on 6/2/2019 by the Confirming Authority. Thereafter, the impugned Order dtd. 1/3/2019 was issued by the Commandant, 1st Battalion, BSF sentencing the respondent to suffer imprisonment for 5 years and to be dismissed from service.