KALI DAS Vs. UNION OF INDIA

JUDGEMENT

(1.) By this habeas corpus petition the petitioner has sought quashing of the illegal proceedings of General Security Force Court resulting in his detention and quashing of the sentence and findings of the order dated 30.1.90, order of confirmation dated 6.3.90 and the promulgation of sentence Ex. 20 dated 9.3.90 and order dated 23.8.90 Ex. 26 by which his petition, dated 7.6.90 against detention was rejected. The petitioner has also prayed for a direction to the respondents to reinstate him in service with all consequential benefits.

(2.) The brief fact given rise to this petition are that the petitioner had joined BSF as peon on 4.1.67 at Calcutta B.S.F. Barrackpore (West Bengal). He was posted to No. 72 BN, at water carrier. The said Battalion was moved to Malda, Tripura/Shlliong and then to Jaisalmer. He was designated as sweeper. He was tried by General Security Force Court from 10th Jan., 90 to 30th Jan., 90. It is stated that while he was working in the accounts branch of 72 BN as sweeper but discharging clerical duties, some irregularities were detected and he was placed under open arrest by an oral order from 15.6.1985 and the written order was passed on 31.8.85. The petitioner during arrest period moved an application on 16.12.85 for consultation with a civil lawyer but the same was rejected on 17.12.85. However, he was ordered to be released from open arrest w.e.f. 10.4.86 by the order dt. 9.4.86 with a direction not to leave unit without prior permission or pass of competent authority. Thereafter the Court of enquiry was ordered and witnesses were examined by the court of enquiry and a charge-sheet Under Section 30(b) for misappropriating fund of Rs. 42,602.84 was issued on 17.10.86 vide Ex. 6 but the petitioner was charge-sheeted for misappropriating fund of Rs. 62,992.60 by the Court Martial and was found guilty of dishonestly misappropriating the property belonging to the Government worth Rs. 38,059.70 and was sentenced to two years rigorous imprisonment and was dismissed from service.

(3.) The petitioner had given legal notice on 9.4.90 (Ex. 21) Under Section 117 of the B.S.F. Act, 1968(hereinafter referred to as the Act) and also moved a petition Under Section 30 for suspension of sentence vide Ex. 23 but with no response. Then a notice Ex. 24 was sent on 12.7.90, which was followed by a telegram (Ex. 25) dated 20.8.90. The petition dated 7.6.90 was rejected on 23.8,90 (Ex. 26). He has, therefore, preferred this habeas corpus petition on 11.10.90, alleging that he is in illegal detention and entitled to be get at liberty as principles of natural justice were not followed and opportunity of being heard was not given. A return to this petition was filed. It has been stated in the reply that petitioner's application dated 16.12.85 was rejected for consultation which the civil justice and not for civil lawyer, and witnesses were heard in the presence of the accused and procedure was followed, and no prejudice was caused to the petitioner as he was given full opportunity to defend his case. The petitioner was represented by his counsel but no objection was raised by him before the court martial trial. It has also been stated that sentence passed on 30.1.90 and confirmed on 9.2.90 was according to law after following the procedure, and the petitioner is serving sentence since 9.3.90. As such the jurisdiction of competent authority could not be challanged in this habeas corpus petition. The State has also filed reply stating that the petitioner is serving sentence awarded by G.S.F.C. and he is in Central Jail, Jodhpur since 12.3.90 and prior to that he remained in sub jail, Jaisalmer from 9.3.90 to 12.3.90. The petitioner has filed rejoinder and the respondents have also filed reply to the rejoinder.