HARBANS SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioners were tried by a Summary Security Force Court in respect of charge viz: "disgraceful conduct". On 1.5.1978 charge sheet was framed and on 3 -5 -1978 they were dismissed from force. Thereafter the petitioners filed an appeal to the competent authority and on appeal the sentence of dismissal was commuted into reduction of their rank from Head Constables to that of Constables. The petitioners challenge their reduction in rank on various grounds in this writ petition. The challenge is based on the ground that the proceedings of the summary security Force court being ultra vires of the Rules and having been conducted in violation of the Rules. It is submitted that they were tried for an occurrence relating to a particular date which was later amended on 25 -5 -1978 by a person who had become functus officio on that date. The charge, it is submitted can be amended by the court and not by a person in his individual capacity. After the conclusion of the proceedings the court had been dissolved, so the Commandant in his individual capacity could not alter the charge as he was not functioning as a Court. Chapter XI of the B S, F. Rules is challanged as being ultra vires of the Constitution of India. This chapter deals with the Summary Security Court.

(2.) RULE 140 of the B.S.F Rules provide that at any time during the trial charge can be amended if any mistake in the name or description or the accused has crept in. During trial if it appears to the court that the interests of justice require addition to omission from or alteration in, the charge, it can be amended. The charge can, therefore, be amended only during the course of trial. Admittedly in this case date of occurrence was changed on 25 -5 -1978.On that date there was no trial. It had concluded on 3 -5 1978, At the conclusion of the trial the Commandant had ceased to be the Presiding Officer of the Summary security Force Court. The court could amend the charge but he could not amend the charge but he could not amend the charge on a date when the Commandant was not presiding over the court and when in fact there was no court in session. It was dissolved with the announcement of the sentence on 3 -5 -1978, On 25 -5 -1978 he was the Commandant though an officer but was not clothed with the powers of the presiding Officer of the court, Therefore, in my opinion amendment of the charge on 25 -5 -1978 is violative of Rule 140 of the B. S. F. Rules.

(3.) AS to whether compliance of the Rule was required or not is a point which has been debated seriously before this court. Mr. S. T. Hussain has relied on Sec. 115 of the B S, F. Act. It lays down the proceedings of every Summary Security Force Court shall without delay be forwarded to the Officer not below the rank of a Deputy Inspector General within whose command the trial was held or to the prescribed officer. Such officer may set aside the proceedings or reduce the sentence to any other sentence but not on technical grounds This is a guide -line for the Officer who is to scrutinize the proceedings of the Summary Security Forces Court. This court is concerned as to whether procedural safeguards were afforded to the petitioners or not Rule 140 required a certain thing to be done in a particular manner. Could it be done in some different manner; my answer to this is emphatic no. The proceedings are to be conducted in a summary manner but rules of natural justice and fair play are to be observed. Charge could be amended only by the court and not by an officer who was not holding the court. Even if amendment was technical it could not be amended by an individual officer on a date when he was not presiding over the court and when there was no court in session. The amendment, itself, therefore, was without jurisdiction. The Rules lays down that charge could be amended during the trial only. If it were intended that it could be amended after the trial as argued, provision should have been made in the Rule. Without any authority charge could be amended in violation of the Rules. This is the only Rule which empowers amendment of the charge. It lays down safe -guards about the amendment of the charge. The petitioners were tried in respect of an offence which was alleged to have been committed by them on 17 -4 -1978 and they have led their defence also in respect to the charge. Subsequently after the dissolution of the Summary Security Force Court, they could not be told that they were punished for an offence which is said to have been committed by, them on 16 -4 -1978. In respect . of 16 -4 -1978 there was no charge nor was the charge amended during the trial. Therefore, the amendment in the charge was violative of Rule 140 of the B, S. F. Rules and had visited the petitioners with civil consequences. In every trial, whether of a summary nature or otherwise, it is required that procedure is punctually observed. The procedural law cannot be held to be directory in nature. It is mandatory because it gives an opportunity to offender to defend himself and if the procedure is violated, the opportunity of defining is taken away, more so when the punishment is sought to be inflicted. Opportunity of this type cannot be taken away from the person who is accused of an offence. Procedural safeguards have the prtention of law if the punishment is given in violation of the procedural safeguards and in violation of the mandate contained in the Rule, the punishment becomes bad in the eye of law and shall have to be struck down because it will be violative of the guarantees contained in Art. 14 of the Constitution of India.