IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 25404 of 2006(Y) -------------------------- PETITIONER: ------------------ CONST. PRADEEP, T.P.NO.89009335, 'C'COY 41 BN. B.S.F., (THROUGH HIS WIFE SMT.SATHI K., W/O.CT.PRADEEP T.P., MATTUMMEL HOUSE, NEELESWAR, KASARAGOD. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.O.V.MANIPRASAD SRI.SOJAN MICHEAL RESPONDENTS: ---------------------- 1. UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, DIRECTORATE GENERAL BOARDER SECURITY FORCE, C.U.O.COMPLEX, BLOCK NO.10, LODHI ROAD, NEW DELHI. 2. THE DIRECTOR GENERAL OF BOARDER SECURITY FORCE, FORCE HEAD QUARTERS, B.S.F.LAW BRANCH, C.U.O.COMPLEX, BLOCK NO.10, LODHI ROAD, NEW DELHI. 3. THE INSPECTOR GENERAL OF BOARDER SECURITY FORCE, COOCHBEHAR, WEST BENGAL. 4. THE COMMANDANT, 15 BN, BSF, COOCHBEHAR, WEST BENGAL. BY ADV. SRI.R.SATHISH KUMAR, ADDL.CGSC SRI.JOHN VARGHESE ASST.S.G. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25404 of 2006(Y) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the finding and the announcement of sentence passed by the 4th respondent. Ext.P2: True copy of the order dated 29.6.2005 from the office of the Commandant, 41 BN BSF, Roop Nagar LRR (WB) Ext.P3: True copy of the statutory petition filed by the petitioner through his wife dated 1.9.2005 filed before the 2nd respondent. Ext.P4: True copy of the order dated 12.4.2006 of the 2nd respondent. // True copy // P.A. to Judge jes A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.25404 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of June 2008 JUDGMENT Petitioner while he was working as Constable in 'C' Coy of the 41st Batallian of the Border Security Force in West Bengal was tried for the offence punishable under Section 302 IPC before the General Security Force Court as provided under the Border Security Force Act, 1968 and the Rules framed thereunder. 2. The gravamen of the charge levelled against the petitioner was that he had committed murder of Constable Brij Mohan on January 13, 2003 by inflicting certain stab injuries on him. The Presiding Officer of the General Security Force Court passed Ext.P1 order holding the petitioner guilty of the charge and convicted and sentenced him to undergo imprisonment for life under Section 302 IPC. 3. The above order passed by the General Security Force Court was confirmed by the “Confirming Officer” as could be seen from Ext.P1 order itself. Thereafter, petitioner was W.P.(C)No.25404 OF 2006 :: 2 :: dismissed from service and his name was struck off the strength of 41 Bn BSF with effect from June 29, 2005. The said order issued by the Commandant of the Batallion concerned is on record as Ext.P2. 4. Petitioner had challenged the order passed by the Confirming Officer before the Central Government as provided under Section 117 of the Act without any success. A copy of the order passed by the final authority is on record as Ext.P4. In this writ petition filed under Article 226 of the Constitution, petitioner prays for issue of a writ of certiorari to quash Exts.P1, P2 and P4 orders. 5. Sri.M.K.Damodaran, learned senior counsel while assailing the orders impugned in this writ petition contends that petitioner who was apparently a victim of unfortunate circumstances had been denied a realistic opportunity of hearing. He submits that a sentence of life imprisonment has been slapped on the petitioner in violation of the well settled rules of natural justice. Not only that the General Security Force had not adverted to the material pieces of evidence in W.P.(C)No.25404 OF 2006 :: 3 :: their proper perspective, but the Confirming Authority as well as the final authority had not even bothered to examine certain glaring illegalities and infirmities on the face of the record. 6. Learned Senior Counsel has taken me through the order passed by the General Security Force Court elaborately. He has also invited my attention to certain admissions made by the respondent in the counter affidavit. As rightly pointed out by the learned Senior Counsel and also as admitted by the respondents in the counter affidavit, the evidence adduced on the side of the prosecution clearly revealed that there was a scuffle involving the petitioner, the deceased and yet another person. It has also been admitted by the respondents that the deceased and the other person who was a party to the scuffle, were drunk. The evidence would further reveal that the deceased was found lying on the ground with some injuries. Learned Senior Counsel submits that the accused was admittedly hospitalised and he was confined to the I.C. Unit for several days. The specific defence apparently set up by the alleged assailant was private defence. W.P.(C)No.25404 OF 2006 :: 4 :: 7. Having gone through the order passed by the General Security Force Court, I am inclined to agree with the learned Senior Counsel that there was no proper appreciation of the evidence in the case. I do not propose to make any further observation or comment on the said issue, in view of the order that I propose to pass in this writ petition. 8. As mentioned earlier, the order passed by the court was confirmed later by the “confirming authority” as provided under Section 108 of the Act. The authority is seen to have passed the said order beneath the order passed by the court. The order is extracted hereunder: “I confirm the fine and sentence of the court. I further direct that the sentence of imprisonment shall be carried out by confinement of the accused in civil prison. Sd/- (Bal Bir Singh) DIG/PSO Office of Inspector General BSF West Bengal Confirming Officer Place: Kadamtalm Date:14/06/2005” W.P.(C)No.25404 OF 2006 :: 5 :: 9. A perusal of the above order passed by the Confirming Officer will apparently show that there was absolutely no application of mind. The Confirming Officer being the appellate authority, and more importantly the last fact finding authority, ought to have atleast made an endeavour to re-evaluate the oral and documentary evidence on record before passing the order. But surprisingly the authority had chosen to pass the impugned order in a very casual and cryptic manner. There is nothing to indicate that the officer had applied his mind. 10. There is yet another aspect of the matter. It is seen that the officer who passed the order was holding the rank of DIG/PSO. But in Ext.P2 order by which the petitioner was dismissed from service, it is seen mentioned that the confirmation order was passed by the Inspector General, BSF, North Bengal. This is apparently not correct, going by the order that is seen to have been passed by the confirming officer referred to above. Further there is nothing on record to show that Sri.Bal Bir Singh, DIG/PSO was authorised to pass the confirming order. For that reason also, I am satisfied that the W.P.(C)No.25404 OF 2006 :: 6 :: order passed by the confirming officer is liable to be quashed. I do so. 11. Though learned Senior Counsel has invited my attention to Ext.P4 order passed by the final authority contending inter alia that the said authority had also not properly applied its mind to the material pieces of evidence in the case, I do not deem it necessary to deal with the said contention at stage since I have already quashed the order passed by the confirming officer. 12. Before parting with the case, it is apposite to mention that the liberty of a citizen as enshrined in the Constitution of India is sacrosanct and it is the bounden duty of the State to protect it. It is undoubtedly true that a person who commits a crime is bound to face trial and is liable to be convicted and sentenced, if he is ultimately found guilty. But such a person has to be given a fair trial. He has to be afforded sufficient opportunity to defend himself. Fair trial in its true sense has to be zealously ensured. The court or authority which passes any order inflicting punishment on an accused or delinquent has to W.P.(C)No.25404 OF 2006 :: 7 :: make it sure that the said order speaks for itself about the guilt of the accused. The finding must be supported by reasons with solid basis on the material pieces of evidence available on record. Those reasons must be discernible on the face of the order. A non speaking order is no order at all. Exercise of power, especially when it affects the personal liberty of the citizen shall never be treated as a meaningless ritual or an empty formality. 13. Having carefully considered the materials available on record, I have no hesitation to hold that the order passed by the General Security Force Court in this case is far from satisfactory. As mentioned earlier, I do not propose to make any further observation or comment on that aspect, in view of the conclusion that I have already made in the case. In my view the next higher authority, the Confirming Officer, has to re- evaluate the entire evidence and take an appropriate decision in the matter in accordance with law. It must be ensured by the said appellate authority that the petitioner is afforded sufficient opportunity to be heard, either in person or through a W.P.(C)No.25404 OF 2006 :: 8 :: counsel of his choice, if he so desires. The said authority shall take a final decision in the matter as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. It will be open to the petitioner to urge all his contentions before the authority concerned. It is made clear that I have not considered the merit of any of the contentions raised by the parties. 14. Though learned Senior Counsel has made an impassioned plea to pass an order releasing the petitioner from detention, I am not persuaded to accede to the said request at this stage. Writ petition is disposed of in the above terms. (A.K.BASHEER, JUDGE) jes