Crl. Writ Petition No. 99 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Writ Petition No. 99 of 2005 Date of decision: 20.10.2011 Mahender Kumar ...Petitioner Versus Union of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Yashwinder Pal Singh, Advocate for the petitioner. Mr. Ashok Kumar, Advocate for Mr. S.K. Sharma, Advocate for Union of India. RANJIT SINGH J. The petitioner has impugned the proceedings of Summary Security Force Court ('SSFC' for short) before which he was tried for two offences and sentenced to be dismissed for service. The allegation made against the petitioner was that while serving with 140 Battalion BSF, he was found in the state of intoxication at Ambush duty. Report in this regard was given by Sh. G.R. Singh, Deputy Commandant of the company to Commandant of the Battalion Bhikiwind. While carrying out routine ambush checking, the petitioner was neither able to walk properly nor was able to speak. The petitioner was then brought back to BOP Thehkalan at around 11.10 p.m. and replaced by another constable for Ambush duty. Later on it revealed that the petitioner had visited Khalra Town and had misbehaved civilians which included one of the mentally retarded woman while under the influence of intoxication. The petitioner was, accordingly, proceeded against. Preliminary inquiry was held under Rule 45 of the Border Security Force Rules, 1969 Crl. Writ Petition No. 99 of 2005 2 (hereinafter referred to an 'Rules'). Record of Evidence was prepared where the witnesses were examined. On the basis of evidence, directions were issued to try the petitioner by Summary Security Force Court ('SSFC' for short). The petitioner was charged for an offences under Section 22 and 26 of the BSF Act. The first charge under Section 22 of the BSF Act was for neglecting to obey a general order where the petitioner had absented from duties and had visited Khalra Town in contravention of the Battalion general order dated 30.01.2009. Second charge was for intoxication for having been found in state of intoxication at Ambush duty. On the basis of his plea of guilty, the petitioner was found guilty and dismissed from service. The SSFC was held by the Officiating Commandant instead of Commandant who perhaps was away. The charge sheet dated 24.05.2003 was duly served upon the petitioner. Thereafter, the petitioner was required to plead to the charges as can be seen from the copy of the trial proceedings annexed with the petition. I have minutely perused the proceedings of SSFC. The petitioner when required to plead to the charges had pleaded guilty, which was duly recorded by the officer holding the trial i.e. 2I/C Jameel Ahmad and Officiating Commandant. Thereafter, the official holding the trial i.e. Court had satisfied himself that the petitioner has understood the effect of pleading guilty. The Court had informed the general effect of pleading guilty and the difference in procedure that was to be followed. Only after satisfying himself that the petitioner had understood the effect of pleading guilty, the Court had accepted Crl. Writ Petition No. 99 of 2005 3 the plea of guilty and had found the petitioner guilty of charges. Counsel for the petitioner submits that signatures of the petitioner was not obtained on the page of the proceedings where the plea of guilty was recorded. There is no requirement under the BSF Act to obtain signatures anywhere of the person who pleads guilty to any charge before the Court. The procedure when an accused person pleads guilty to the charge or charges before SSFC is provided under Rule 143 of the BSF Rules. Rule 142 of the BSF Rules regulates the manner of recording the plea of 'Guilty' or 'Not Guilty' when offered by an accused before SSFC. Rules 142 and 143 of BSF Rules reads as under:- 142. General plea of “Guilty” or “Not Guilty”.- (1) The accused person's plea of “Guilty” or “Not Guilty” (or if he refuses to plead or does not plead intelligibly either one or the other), a plea of “Not Guilty” shall be recorded on each charge. (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. Crl. Writ Petition No. 99 of 2005 4 (3) Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plea thereto, and a record to that effect shall be made in the proceedings of the Court. 143. Procedure after plea of “Guilty”. (1) Upon the record of the plea of “Guilty”, if there are other charges in the same charge-sheet to which the plea is “Not Guilty”, the trial shall first proceed with respect to those other charges, and, after the finding on those charges, shall proceed with the charges on which a plea of “Guilty” has been entered, but if there are alternative charges, the Court may either proceed with respect to all the charges as if the accused had not pleaded “Guilty” to any charge, or may, instead or trying him, record a finding of “Guilty” upon any one of the alternative charges to which he had pleaded “Guilty” and finding of “Not Guilty” upon all the other alternative charges which precede such charge. (2)(a) After the record of the plea of “Guilty” on a charge (if the trial does not proceed on any other charges) the Court shall read the record or abstract of evidence and annex it to the proceedings, or if there is no such Crl. Writ Petition No. 99 of 2005 5 record, or abstract shall take and record sufficient evidence to enable it to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence. (b) The evidence shall be taken in like manner as is directed by these rules in the case of a plea of “Not guilty”. (3)The accused may, after such evidence has been taken or as, the case may be, the record or abstract of evidence has been read, address the Court with reference to the charge and in mitigation of punishment and may call witnesses as to his character. (4)(a) If from the statement of the accused, or from the record of evidence, or otherwise, it appears to the court that the accused did not understand the effect of his plea of “Guilty”, the Court shall after the record and enter a plea of “Not guilty”, and proceed with the trial accordingly. (b) Any alternative charges withdrawn under sub-rule (1) shall be reinstated in the charge sheet and the trial shall take place as if they had never been withdraw. (5)If a plea of “Guilty” is recorded on some “charges and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub-rules (2) and (3) shall take place after the findings on the other charges in the same charge-sheet are recorded. (6)When the accused states anything in mitigation of Crl. Writ Petition No. 99 of 2005 6 punishment which in the opinion of the Court requires to be proved, and would, if proved, affect the amount of punishment, the Court may permit the accused to call witnesses to prove the same. The SSFC is a form of Court which is held by Commandant of the Unit and as per the statutory provisions contained in the BSF Act, is required to be attended by two other persons who shall be officers or Subordinate Officers or one of either. It is only to witness all these proceedings and to authenticate the record of the proceedings, the trial that the statute has made a provision of two officers to remain in attendance. This is as per Section 70 of the BSF Act, which is as under:- 70. Summary Security Force Court. -- (1) A Summary Security Force Court may be held by the Commandant of any unit of the Force and he alone shall constitute the Court. (2) The proceedings shall be attended throughout by two other persons who shall be officers or subordinate officers or one of either, and who shall not as such, be sworn or affirmed. It is not a case of the petitioner that he did not offer the plea of guilty and it was wrongly recorded. The fact that the petitioner had voluntarily pleaded guilty is further made out from the proceedings where proper procedure after recording of plea of guilty was followed as given in Rule 143 referred to above. As per the requirement of the rules, once the accused person offers the plea of guilty and it is so recorded, the record of evidence is then required to Crl. Writ Petition No. 99 of 2005 7 be read and annexed with the proceedings [See Rule 143 (2)(A)]. This was so done as page 'C' of the proceedings annexed with the petition as Annexure P-13 would show. Thereafter, the accused has a right to address the Court in mitigation of punishment and he was afforded this opportunity in terms of Rule 143 (3) of the Rules. The Court had addressed a question to the accused to the effect whether he wished to make any statement in reference to the charge or in mitigation of punishment. This question as addressed to the petitioner and was so recorded at page 'C' of the proceedings (Annexure P-13). In response to this question, the petitioner had given a categorical answer feeling sorry for the offence committed by him and had sought pardon in most unequivocal terms. His exact answer reads as under:- “ Ans. I am sorry for the offence I have committed. The accused say I may be pardoned.” The petitioner was also given opportunity to produce any witness or witnesses, if any, as to his character which he declined. Thereafter, the Court had considered the penalty required to be imposed. This is the requirement in terms of Rule 151 of BSF Rules which is as under:- 151. Procedure on finding of ‘Guilty’.- (1) Where the finding on any charge is ‘Guilty’ the Court may record of its own knowledge, or take evidence of any record, the general character, age, service, rank, and any recognised acts of gallantry, or distinguished conduct of the accused, and previous convictions of the accused either by a Crl. Writ Petition No. 99 of 2005 8 Security Force Court, or a Criminal Court, any previous punishment awarded to him by an officer exercising authority under section 53, the length of time he has been in arrest or in confinement of any previous sentence, and any decoration, or reward of which he may be in possession or to which he may be entitled. (2) Where the Court does not record the matters mentioned in this rule of its own knowledge, evidence on these matters may be taken in the manner directed in rule 101 for similar evidence. The previous record within 12 months of the petitioner was then taken note of as can be seen from page 1 of the proceedings annexed with the petition as Annexure P-14. The petitioner cannot boast much about his previous record. He had invariably been punished, for an offence under Sections 40, 19(c), 22 (2), 19(a), 26 and 22-E and imposed imprisonment for varying periods. After taking all these aspects into consideration, the Court had imposed the sentence of dismissal from service. The plea of the counsel that the petitioner's plea of guilty was not properly recorded, thus, cannot be accepted. The petitioner had pleaded guilty to the charge whereupon the Court followed the provisions of the Act to record and then to impose the punishment. Counsel then contends that the proceedings were held by Officer, who was second in command. As per the counsel, the second-in-command was not competent to hold the trial of the petitioner. In my view, this submission is raised more in ignorance Crl. Writ Petition No. 99 of 2005 9 than with any basis. Second Commandant (2I/c) Jameel Ahmad had held the trial SSFC of the petitioner in his capacity as Officiating Commandant. The definition of Commandant as contained in Section 2(f) would clearly show that it is inclusive definition. Commandant is defined to mean an Officer, whose duty it is under the rules to discharge with respect to that unit the functions of a Commandant in regard to matter of the description referred to in that provision. The Commandant or the person who is Officiating Commandant, can always validly exercise powers of command and perform all judicial powers in view of the definition of Commandant as given under the act. Second-in-Command (2I/c) as the name and designation would suggest is next to Commandant in a unit like BSF Battalion. It is not only a designation but is a rank now as per the constitution of the force given under provision of the Act/Rules. During temporary or other absence of the Commandant, the Command, powers and duties automatically devolves on the next officer in chain that is the Second-in-Command. This aspect is so very clear from Rule 16 of the BSF Rules which may be noted as under:- 16. Command. -- (1) An officer appointed to command shall have the power of command, over all officers and men, irrespective of seniority placed under his command. (2) (a) in the contingency of an officer being unable to exercise the command, to which he has been appointed, due to any reason, the command shall devolve on the second-in-command, if one has been so appointed. (b) If no second-in-command has been Crl. Writ Petition No. 99 of 2005 10 appointed, it shall devolve on the officer who may be appointed to officiate by the immediate superior of the officer unable to exercise command. (c) If no such officer has been so appointed, command shall devolve on the senior most officer present. (d) The inability of an officer to exercise command and its assumption by any other officer in accordance with this sub-rule shall be immediately reported to Force Head-quarters by the officer who has assumed command. (3) If persons belonging to different battalions and units are working together -- (i) in regard to the specific task on which they are engaged, the officer appointed to command or in his absence the senior most officer present shall exercise command over all such persons, (ii) in all other matters the senior officer belonging to each battalion shall exercise command over persons belonging to his battalion. (4) When officers and other persons belonging to the Force are taken prison by an enemy the existing relations of superior and subordinate and the duty of obedience shall remain unaltered and any person guilty of indiscipline or insubordination in this behalf shall, after his release be liable for punishment. (5) Disciplinary powers over a person subject to Crl. Writ Petition No. 99 of 2005 11 the Act shall be exercised by the Commandant of the battalion or unit to which such a person belongs or the officer on whom command has devolved in accordance with sub-rule (2). (6) Where such a person is doing detachment duty, including attendance at a course of instruction the Commandant of the battalion, unit, centre or establishment with which he is doing such duty shall also have all the disciplinary power of a Commandant. (7) The Director-General, the Inspector-General and the Deputy Inspector-General may specify one or more officers of the staff who shall exercise the disciplinary powers of a Commandant in respect of persons belonging to or doing detachment duty at their respective Headquarters. Explanation. -- In this rule, except in sub-rule (2), the word “officer” shall include a subordinate officer and an under officer. This while officiating as Commandant, Second-in- Command could competently hold the trial of the petitioner by SSFC subject to some restriction on his power to impose penalty made in the statute, if any. In regard to restriction on powers to impose penalty, reference may be made to Section 74 of the Act, which is as under:- 74. Powers of a Summary Security Force Court. -- (1) Subject to the provisions of sub-section (2), a Summary Security Force Court may try any offence Crl. Writ Petition No. 99 of 2005 12 punishable under this Act. (2) 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 the 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 this Act, or any offence against the officer holding the court. (3) A Summary Security Force Court may try any person subject to this Act and under the command of the officer holding the court, except an officer, or an subordinate officer. (4) A Summary Security Force Court may pass any sentence which may be passed under this Act, except the sentence of death or of imprisonment for a term exceeding the limit specified in sub-section (5). (5) The limit referred to in sub-section (4) shall be,-- (a) one year, if the officer holding the Security Force Court has held either the post of Superintendent of Police or a post declared by the Central Government by notification to be equivalent thereto, for a period of not less than three years or holds a post of higher rank either of the said posts; and (b) three months, in any other case. Counsel next contends that Deputy Commandant, who Crl. Writ Petition No. 99 of 2005 13 was the Company Commander of the petitioner was a complainant and other witnesses were also from the unit. The witnesses could not have been created. The witness had to be those who had witnessed the incident. The submission that Deputy Commandant is senior to second-in-command is again advanced out of sheer ignorance than any valid or legal basis. The Deputy Commandant i.e. the complainant, in this case, was the Company Commander whereas the officer holding the Court was second-in-command and superior officer to the Company Commandant. There is no scope of ambiguity in regard to power of command and this aspect is so very much clarified by Rule 16 of the rules reproduced above. Counsel then contends that punishment of dismissal is higher in scale then rigorous imprisonment of 3 months. To my mind this submission would be of no consequence or effect. It is not pleaded before me that the officer holding trial was not competent to impose sentence of dismissal. Doubt if any can be set at rest by making reference to Section 74 of Act as reproduced above. Thus, the Court is not required to go into this aspect whether the sentence of dismissal would be higher in scale of gravity than the rigorous imprisonment. Besides, this submission is also misconceived. The punishments awarded by Security Force Courts are listed in Section 48 of the Act. The punishments, which may be inflicted are listed according to the scale. These are the punishments, which are awardable by Security Force Courts. Punishments and scale are further regulated by the offence alleged and proved and also the restrictions that may be imposed by the statute for the various forms Crl. Writ Petition No. 99 of 2005 14 of Security Force Court. Like offences under Section 22 are punishable upto 2 years whereas offence under Section 26 is punishable upto six months imprisonment. Under the Act, there are three kinds of Security Force Courts i.e. (a) General Security Force Court (GFC); (b) Petty Security Force Court (PFC) and (c)Summary Security Force Court (SSFC). Each kind of Security Force Courts is authorised and empowered to impose various punishments authorised under the Act. Like GFC has power to try any person subject to the Act for any offence punishable thereunder and to pass any sentence authorised thereby [See Section 72 of the BSF Act]. PFC has the power to try any person under the Act other than officer and subordinate officer for any offence made punishable thereunder and pass any sentence authorised by this Act other than a sentence of death; or imprisonment for a term exceeding two years. Powers of SSFC to try person subject to the Act and to impose punishment is further restricted in nature and extent. As laid down under Section 74 of the Act, SSFC can try only person other than officers and subordinate officers and can also not try offences under Sections 14, 17 and 46 of the Act without making reference to the officer empowered to commence PFC unless there is a grave reason for immediate action and reference can not be made without determent to discipline. Then there are restrictions on the powers of SSFC to impose punishment as given in Section 74 (4) and (5) of the Act already reproduced above. Apart from these limitation on the powers as provided and discretion to impose any punishment as authorised and provided under the Act. Once this Court comes to the conclusion that the charges Crl. Writ Petition No. 99 of 2005 15 are proved and the charges are of serious nature, it is not the function of the Court to interfere with the quantum of punishment. The Courts cannot lightly interfere with the sentences passed after a properly conducted enquiry and properly held trial when guilt is established. Interference in the sentences imposed in military or paramilitary forces without basis or valid reason can have detrimental effect on the discipline in such forces. Punishment of dismissal from services is within the powers of SSFC. This Court cannot sit over as appeal court over the discretion exercised by the SSFC to impose this punishment. Requirement of discipline and the standard of responsibility is well known to the officer commanding the force who are empowered to exercise such judicial/quasi judicial functions. A person who is found in a state of intoxication while performing active combat duty of Ambush and had absented to get drunk by going to town prohibited by a general order may not deserve to remain in service. No submissions are made to urge that the punishment is not commensurate with the nature and gravity of the offences proved or that it is harsh. Submission appears to be that the petitioner could have been retained in service by imposing three months imprisonment in force custody. It is not within the purview of this Court to interfere in the quantum and choice of the punishment imposed by Force Courts. The question of the choice and quantum of punishment is within the jurisdiction and discretion of Force Courts. Writ Courts may be able to interfere only where the sentence is vindictive or unduly harsh or if it is found disproportionate to offence charged and proved as to shock the conscience of the court and Crl. Writ Petition No. 99 of 2005 16 amount in itself to conclusive evidence of bias. No such considerations are seen in this case. The sentence can not be termed harsh and disproportionate having regard to the previous conduct of the petitioner. There is no irrationality or perversity in the punishment