(1) Devi Lal Sahu Vs. U.O.I. & Another IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : Devi Lal Sahu Vs. U.O.I. & Another (S.B. Civil Writ Petition No.5158/2004) DATE OF ORDER : September 04, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. Sandeep Shah for the petitioner. Mr. V.K. Mathur, for U.O.I. Reportable BY THE COURT : By this petition, the petitioner has prayed for quashing of the order dated 10.11.2003 passed by Summary Security Force Court (hereinafter, for short “the SSF Court”) which was further confirmed vide order dated 1.12.2003 by the D.I.G. B.S.F. Barmer and the order dated 21-22.9.2004 whereby the appeal filed by the petitioner has been dismissed. The contention of the learned counsel for the petitioner is that he was substantively working in B.S.F. since 5.9.1986 and served the respondent Department with utmost sincerity and (2) Devi Lal Sahu Vs. U.O.I. & Another dedication. During his service tenure, he received cash rewards from I.G. B.S.F., 9 Commendation Rewards from the D.I.G. And 10 from Commandant. As per the facts of the case, till 2003 only two punishments were inflicted against him with regard to absence without leave and over staying on leave and till 2003 his service record was unblemished and there is no charge against the petitioner for committing any offence involving moral turpitude. According to the petitioner some dispute arose in between the respondent No.5 and him and it resulted in verbal altercation at the shooting range in Punjab in the year 1990 and petitioner had verbally reported the incident to the I.G. B.S.F. Punjab Frontier. Due to that reason, Shri A.K. Tambe was annoyed with him and the moment he joined the 20 Bttn. B.S.F., he had verbally threatened him that “I will see you”. On 28.10.2003, the petitioner was served with charge-sheet under Section 26 of the B.S.F. Act, 1968 and before serving charge-sheet, the petitioner was placed under close arrest at Headquarter 20 Bn. B.S.F. Barmer on 29.10.2003. On 29.10.2003, the respondent No.5 directed Shri S.S. Choudhary to prepare a detail report and to conduct the Record of Evidence. On 7.11.2003, the petitioner was informed that a SSF Court is going to be held at Headquarter 20 Bn. B.S.F. on 10.11.2003 and the petitioner is to (3) Devi Lal Sahu Vs. U.O.I. & Another be tried for committing offence under Section 26 of B.S.F. Act, 1968. Further it was informed that he may appoint a friend of the accused for defending his case and the name of friend was to be informed to the Office on 8.11.2003. The contention of the petitioner is that he never appointed Shri A.K. Tambe as his friend in the proceedings but he was shown to have been appointed as friend of accused to defend him in SSF Court trial. It is very strange that in the SSF Court, without his consent Shri A.K. Tambe was appointed as friend but while recording guilty of the petitioner under Rule 142 of the B.S.F. Rules, 1969, the Presiding Officer convicted the petitioner with sentence of dismissal from service vide order dated 10.11.2003. The said order was confirmed by the respondent No.4 vide order dated 1.12.2003. Being aggrieved with the aforesaid orders, an appeal was filed by the petitioner and that too was dismissed. In above circumstance, the petitioner was compelled to file writ petition before this Court, which was registered as SB Civil Writ Petition No.3288/2004 in which the sentence awarded by SSF Court was challenged but at that time the appeal filed by the petitioner under Section 117 (2) of the B.S.F. Act was pending, therefore, the above writ petition filed by the petitioner was dismissed and the respondents were directed to expedite the (4) Devi Lal Sahu Vs. U.O.I. & Another hearing of the appeal. The appeal filed by the petitioner was, thereafter decided in very casual manner while observing that “the issues raised in your petition have been considered very carefully in the light of relevant records, legal provisions and evidence in Summary Security Force Court trial proceedings. After detail consideration and a careful scrutiny of all the facts and circumstances of the case, the DIG, B.S.F. Has rejected your petition being devoid of merit”. The petitioner has challenged whole of the proceedings in which, on the basis of recording the plea of guilt by the petitioner he has been penalized with the penalty of dismissal from service. Learned counsel for the petitioner has raised following grounds to quash the penalty order dated 10.11.2003 and order of the appellate authority before this Court : (1) the order impugned passed by SSF Court dated 10.11.2003 and confirmed vide order dated 21-22.9.2004 by the DIG, B.S.F., Barmer are arbitrary and illegal and have been passed in very causal manner without going through the evidence available on record; (2) the petitioner never appointed Shri A.K. Tambe as his friend in the proceedings because there was quarrel in between the petitioner and Shri A.K. Tambe, therefore, there was no (5) Devi Lal Sahu Vs. U.O.I. & Another question to appoint him as friend in the proceedings; (3) the Presiding Officer had committed breach of Rule 48 of the B.S.F. Rules, 1969 because while preparing the record of evidence the Officer acts like a senior clerk only and the only duty assigned to him is to record the evidence as stated by the witnesses and also to take down the questions asked by the accused to the prosecution witnesses and the answers given by them. In fact Recording Officer has no right whatsoever to ask any question to the prosecution witnesses. He can at the most ask the questions to the defence witnesses. Therefore, whole proceedings is in violation of Rule 48 of the Rules of 1969; (4) as per the petitioner, not a single person had seen him to consume the liquor. In fact the so called half filled bottle of liquor was also not recovered at the instance of the petitioner and nobody had seen the petitioner bringing the above mentioned bottle. The said bottle was recovered from open place and the bottle was never sent for F.S.L. to confirm whether it contained liquor or not; (5) the most important ground is that before recording plea of guilty the procedure provided under Rule 142(2 of the BSF Rules was not complied with which is mandatory in nature. It is vehemently submitted that the petitioner never (6) Devi Lal Sahu Vs. U.O.I. & Another pleaded guilty before SSF Court trial in fact he had repeatedly requested for cross-examining the witnesses and to produce his evidence in defence, but no opportunity was given and straightaway while observing the word “guilty”, the penalty has been inflicted against the petitioner. As per the petitioner before recording guilty the respondents were under obligation to follow Rule 142 (2) of the BSF Rules 1969 but before recording finding of guilty, the Court never ascertained from the petitioner whether he has understood the nature of charge to which he has pleaded guilty, so also never informed him the general effect of that plea and meaning of the charge to which he has pleaded guilty. Further, it is submitted that there is no signature upon the proceedings in which guilty has been recorded, therefore, whole proceedings initiated against the petitioner is required to be vitiated. It is also submitted that since 19.10.2004, the petitioner was in custody and all the proceedings were undertaken when the petitioner was in close arrest, therefore, whole proceedings are against the principles of natural justice. Therefore, the orders impugned may kindly be quashed. As per the petitioner he was illegally implicated in false case of intoxication because there is no eye-witness to prove that the petitioner had consumed liquor while on duty. (7) Devi Lal Sahu Vs. U.O.I. & Another Learned counsel for the petitioner has invited the attention of this Court towards certain judgments of this Court in case of U.O.I. Vs. Vishnu Lal Nai, reported in 2005 (1) RRD 415 (Raj.) and in case of UOI Vs. Ex. Sepoy Chander Singh, reported in 1998 (1) RLW (Raj.) 118 in which it has been held that Rule 34 and 115 of the Army Rules, 1956 are mandatory in nature and these provisions are required to be complied with before recording guilty of the delinquent. It is submitted by learned counsel for the petitioner that Rule 42 (2) of the B.S.F. Rules, 1969 is pari materia to Rule 115 (2) of the Army Rules, 1956 , therefore, the orders impugned deserve to be set aside. Learned counsel for the petitioner has invited the attention of this Court towards recent judgment of this Court in SB Civil Writ Petition No. 4559/1993 decided on 29.11.2006 in which the learned Single Judge of this Court has held that the effect of none signing of plea of guilt by the accused is one of the important factor and it is mandatory to obtain signatures of the incumbent concerned while observing the plea of guilt. It is also contended that the plea of guilt recorded by SSF Court is illegal being not signed by the accused and also by the Court. The said judgment was further upheld by Hon'ble Division Bench of this (8) Devi Lal Sahu Vs. U.O.I. & Another Court in D.B. Civil Appeal (Writ) No.450/2007, decided on 5.10.2007, therefore, this writ petition deserves to be allowed. Per contra, learned counsel appearing on behalf of U.O.I. vehemently argued that all the proceedings were undertaken in accordance with BSF Rules and there is no illegality in the orders impugned. Further it is submitted that before awarding any sentence to the petitioner, the SSF Court has considered his previous record, in which he was convicted for seven times and found that the general character of the petitioner is not just and satisfactory as he has been awarded with seven punishments. Therefore, looking into the entire aspect of the matter, the SSF Court has awarded the sentence of dismissal from service against the petitioner w.e.f. 10.11.2003 and the finding and sentence of the SSF Court is in consonance with the provisions of law, therefore, looking into the entire aspect of the matter, the SSFC has awarded punishment with effect from 10.11.2003 and the finding of the SSFC is in accordance with the provisions of law. Learned counsel for the respondents vehemently argued that the contention of the petitioner with regard to denial of appointment of A.K. Tambe as friend is totally false and he himself as appointed him as a friend in the trial which cannot be (9) Devi Lal Sahu Vs. U.O.I. & Another questioned. It is also argued that the SSFC trial was held in accordance with the BSF Rules and the petitioner was given full opportunity to defend his case. During the trial he pleaded guilty of the charge in the presence of two members and the SSFC further proceeded on his plea of guilty and, thereafter, in accordance with Rule 142(2) of the Rules the petitioner was convicted and awarded the sentence of dismissal from service which is commensurate with the gravity of the offence committed by the petitioner. Therefore, no interference is required in the order of punishment passed against the petitioner. Learned counsel for the respondents submitted that the appellate authority also decided the petition filed under Section 117 of the Act in which there is no provision for affording opportunity of personal hearing. Therefore, the order of the appellate authority is also in consonance with the provisions of law. As per the respondents, the petitioner was found guilty of a serious misconduct and number of punishments were awarded to him and, at last, for the charge of consuming liquor while on duty he committed offence punishable under Section 26 of the Act for intoxication, therefore, record of the evidence was ordered against him vide communication dated 29.10,.2003 as (10) Devi Lal Sahu Vs. U.O.I. & Another he was found in a state of intoxication at Mithrau post on 28.10.2003 at about 0730 hrs.; and, in the proceedings, he has pleaded guilty of the charges levelled against him. Therefore, the SSFC, after complying with the provisions of Rule 142(2) of the BSF Rules, passed order impugned after providing opportunity of hearing to the petitioner. Learned counsel for the respondents contended that all the grounds taken by the petitioner are baseless and the same have no foundation to stand in the eye of law. It is, therefore, contended on behalf of the respondents that there is no substance in the writ petition and the same deserves to be dismissed. I have carefully gone through the entire proceedings and perused the record. Admittedly, the punishment order has been passed on the basis of pleading guilty by the petitioner of the charges levelled against him which is evident from the order impugned itself. Therefore, in my opinion, the matter is required to be examined as to whether the said plea was recorded in accordance with Rule 142(2) of the BSF Rules or not. Before adjudicating upon the matter, it is required to be observed that in the Army Rules there is analogous provision under Rule 115(2) of the Army Rules and the same is thus para materia with Rule 142(2) of the BSF Rules. The language of Rule 115(2) of the Army Rules (11) Devi Lal Sahu Vs. U.O.I. & Another 1952 is as follows : “115 (2) If an accused person pleads “Guilty”, that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty.” Similarly, the language of Rule 142(2) of the BSF Rules 1969 reads as under : “142(2). If an accused person pleads “Guilty”, that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.” Upon perusal of both the provisions, Rule 115(2) of the Army Rules as well as Rule 142(2) of the BSF Rules, it is obvious that there is duty cast upon the authority who is recording the plea of guilty of an accused. Admittedly, in the proceedings conducted against the petitioner by the SSFC the plea of guilty was recorded on 10.11.2003. The relevant portion of the said (12) Devi Lal Sahu Vs. U.O.I. & Another proceedings is as follows : “ARRAIGNMENT Q-1 Question to the accused. How say you No.86132836 Constable Devi Lal, are you 'Guilty' or 'Not Guilty' of the charge, which you have heard read ? Q-1 Answer by the accused. 'GUILTY' The accused having pleaded GUILTY to the charge, the Court read and explains to the accused the meaning of that charge to which he has pleaded GUILTY and ascertains that the accused understands the nature of the charge to which he has pleaded GUILTY. The Court also informs the accused the general effect of that plea and the difference in procedure which will be followed consequent to the said plea. The Court satisfies itself that the accused understands the charge and the effect of the plea of GUILTY and the difference in procedure which will be followed consequent to the said plea. The Court satisfies itself that the accused understands the charge and the effect of his pleas of guilty to the charge particularly the difference in procedure. The provisions of BSF Rule 142(2) are complied with.” In this proceedings, it bears no signature of the accused; meaning thereby, the signature of the petitioner upon the recording of the plea of guilty is absent. Further, in para (A) 8 of the reply, it is specifically stated that, “after recording the plea of guilty on the charges levelled against the petitioner, the SSFC (13) Devi Lal Sahu Vs. U.O.I. & Another complied with all the provisions of Rule 142(2) of the BSF Rules.”; meaning thereby, after recording the plea of guilty the SSFC has complied with the provisions of Rule 142(2) but it was to be complied with prior to recording of the plea of guilty. In this view of the matter, in my opinion, the proceedings with regard to recording the plea of guilty is totally unfounded and in contravention of Rule 142(2) of the Rules of 1969. In this case the petitioner has been penalized on the basis of the plea of guilty and no inquiry whatsoever has been conducted, therefore, the appointment of A.K. Tambe as friend in the SSFC trial is totally irrelevant for the purpose of adjudicating this matter. In identical situation, while dealing with almost similar case, the co-ordinate Bench of this Court in the case of Ex L/Nk Bega Ram Vs. Union of India & Others, S.B. Civil Writ Petition No.4559/1993, decided on 29.11.2006, held that before recording the plea of guilty genuinely the mandatory provisions of Rule 115(2) of the Army Rules of 1954, which is para materia to Rule 142(2) of the Rules of 1969, was to be complied with and if there is no signature upon the recording of the plea of guilty of the accused, then, such proceedings deserves to be quashed. The said judgment was upheld by the Division Bench of this Court. The Division Bench, in the judgment reported in Mil LJ (14) Devi Lal Sahu Vs. U.O.I. & Another 2007 (Raj.) 231, held in para 5 to 8 that before recording plea of guilty compliance of Rule 115(2) of the Army Rules was mandatory. Para 5, 6, 7 and 8 of the said judgment run as under : “We have gone through the judgment of the Division Bench of this Court in Chander Singh's case (supra) in which the provision of compliance of Rule 115(2) of the Rules, was made mandatory. The Division Bench of this Court in the above case also looked into the original record and came to the finding that the guilt recorded by the officer incharge, alleged to have been made by the respondent, does not even bear the signatures of the respondent. In such a case, the sanctity of such information becomes doubtful. However, the Court also observed that in matters like Disciplined Forces, it requires special consideration irrespective of the other procedural laws including the principles of natural justice. We have also examined the record of this case in the light of the statutory provisions contained in the Army Rules. From the perusal of the summary proceedings record, it is clear that in part 'B' of the proceedings, which deals with the arraignment about questions to the accused on charges, the reply has been recorded about plea of guilty in positive but thereafter the Column regarding compliance of Section 115(2) of the Rules is blank. It is neither signed by the respondent nor by the Incharge Court Martial. Of course, a separate certificate has been affixed in the following form on a white sheet by the Commanding Officer, who conducted the enquiry. “CERTIFICATE It is certified that the accused has been explained the meaning of charge and he understands the nature of charge to which he has pleaded guilty. The accused is informed of the difference in procedure which will be followed consequent to his plea of guilty. Sd/- (15) Devi Lal Sahu Vs. U.O.I. & Another (K.S. Dalal) Colonel Commanding Officer 4 RAJ RIF The Court” Whereas Rule 115 (2) of the Rules reads as under : “115. General plea of “Guilty” or “Not Guilty”.-(1) xxx (2) If an accused person pleads “Guilty”, that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty.” A bare reading of this Rule provides that before recording the plea of guilty, the Court Martial shall ascertain the following factors (i) that the accused understands the charge to which he has pleaded guilty; (ii) he shall also inform him of the general effect of that plea; (iii) in particular, of the meaning of the charge to which he has pleaded guilty; (iv) of the difference in procedure which will be made by the plea of guilty; and, (v) shall advise him to withdraw that plea if it appears from the summary of evidence or otherwise that the accused ought to plead not guilty. Keeping in view the language used in Rule d115(2) of the Rules, the certificate which is appended or affixed, is silent on two counts, out of the above five, firstly, the accused was not informed about the general effect of the plea of guilty and secondly, about advising him to withdraw that plea, if it appeared from the summary of evidence or otherwise that the accused ought to plead not guilty. The satisfaction or ascertainment of the Court Martial Incharge on these five factors is coupled with the word “shall”, which are lacking in (16) Devi Lal Sahu Vs. U.O.I. & Another the certificate attached with the summary proceedings on a separate sheet. When the mandatory requirement of the language used in Rule 115(2) of the Rules is lacking in the Certificate and the Summary form, dealing with the certificate, is blank & unsigned by both Commanding Officer and the respondent, the necessary inference which can be drawn is that the mandatory requirement of Rule 115(2) of the Rules was not complied with, which the Summary form itself says that it is not only required to be complied with but the fact that this has been done, should also be recorded. The contention of learned Senior Counsel for Union of India that Rule 125 should be read with Rule 115(2) of the Rules, is devoid of force. The language of Rule 125 of the Rules pertains to signature on the sentence part which shall have authenticity of the whole of the proceedings. The sentence part is on page 'J' of the Summary proceedings. Had this interpretation been taken to be correct, then why the Court Martial signed on other pages like 'A', 'C', 'D', 'E', 'F', 'G', 'H', 'I' and 'J'. The only page which is unsigned is page 'B' and it is the most important page dealing with the charge and the plea. Though while sitting in appeal, we cannot comment on the finding of this fact as to whether this certificate has been affixed afterwards or not but if we look at the certificate for compliance of Rule 115(2) of the Rules and page'B' of Summary proceedings pertaining to charge and guilty plea, it clearly appears that compliance of Rule 115(2) has not