EX CONSTABLE PAPU SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) SEEKING an appropriate writ, order or direction to quash the Summary Security Force Court's proceedings, those resulted into dismissal of the petitioner from service, this petition for writ is preferred.

(2.) THE petitioner was enrolled with Border security Force as Constable in the year 1988. While posted with 66 Battalion at Jaisalmer he was placed under open arrest on 9. 6. 1995 alleging commission of an offence on 7. 6. 1995 punishable under Sections 354 and 451 IPC, triable under Section 46 of the Border security Force Act, 1968 (hereinafter referred to as "the Act of 1968" ). The officiating Commandant, 66 battalion vide order dated 9. 6. 1995 detailed Shri j. S. Aulakh, Deputy Commandant to prepare record of inquiry against the petitioner and to complete the same in all respect by 14. 6. 1995. The record of inquiry was prepared from 12. 6. 1995 to 20. 6. 1995, however, the Commandant ordered to record additional evidence by an order dated 21. 6. 1995. Shri J. S. Aulakh recorded additional evidence on 21. 6. 1995 and remitted the record of inquiry to the Commandant. An offence report as per Rule 43 of the Border Security Force rules, 1969 (hereinafter referred to as "the Rules of 1969") was also prepared and then the Commandant, 66 battalion ordered for an another record of inquiry vide order dated 16. 2. 1996 by Shri S. K. Swami, assistant Commandant. In pursuant to the order aforesaid another record of inquiry was prepared and concluded on 19. 2. 1996. The Commandant, 66 Battalion vide letter dated 22. 2. 1996 proposed trial of the accused petitioner by Summary Security Force Court by himself in terms of Section 70 of the Act of 1968.

(3.) ACCORDINGLY, Summary Security Force Court was convened and the charge sheet dated 22. 2. 1996 was issued. The petitioner availed service of Shri Chain Singh of 192 battalion, Border Security Force, Jaisalmer as "friend of the accused". The proceedings of the Summary security Force Court were concluded on 20. 3. 1996 and the petitioner was sentenced by "dismissal from service". The sentence awarded was promulgated by the commandant, 66 Battalion as per provisions of Rule 159 of the Rules of 1969 and a promulgation certificate was issued on 20. 3. 1996 itself. As per the petitioner, copy of the Summary Security Force Court proceedings was not supplied to him and he was also not apprised about right of filing the statutory petition as per the provisions of Section 117 of the Act of 1968. The proceedings concerned were supplied to the petitioner subsequently and then he preferred a petition as per section 117 of the Act of 1968 before the Director general, Border Security Force with numerous contentions including that no reference by the competent authority was made as required under sub-section (2) of Section 74 of the Act of 1968 to try the petitioner by Summary Security Force Court. The Chief law Officer (D and L) by a communication dated 20. 3. 1997 informed the petitioner that his petition has been rejected by the Director General after careful consideration of all the points raised therein, thus, being aggrieved by the award of sentence and rejection of statutory petition, this petition for writ is preferred with the contentions that; (1)as per Section 74 (2) of the Act of 1968, when there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a Petty Security Force Court for trial of the alleged offender, an officer holding a summary Security Force Court shall not try without such reference any offence punishable under any of the sections 14, 17 and 46 of the Act, but in the present case without making such reference the petitioner was tried for Section 46 by a Summary Security Force court; and (2)the Director General rejected the petitioner's statutory petition without adequate application of mind.