Criminal Writ Petition No. 1457 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No. 1457 of 2003 Date of decision: 21.01.2010 L/NK (Ex.) Mukhtiar Singh ...petitioner. Versus Union of India and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Rajiv Anand, Advocate and Mr. Arun Bansal, Advocate for the appellant. Mr. Anil Rathee, Advocate for Union of India. ***** RANJIT SINGH J. While serving as Lance Naik in the Border Security Force, the petitioner was put to trial by Summary Security Force Court on 3 counts for disobeying the lawful command, using threatening language and for intoxication. After holding the necessary investigation under the Act, the trial was conducted where the petitioner pleaded guilty to all the charges. He was accordingly found guilty of three charges preferred against him and was sentenced to be dismissed from service. Aggrieved against the finding and sentence awarded to him, the petitioner preferred the petition under Section 172 of the Border Security Force Act. Copy of the same is annexed as Annexure P-5. The said petition, however, was rejected on 29.04.2003. He has now filed the present writ petition against the trial and the award of punishment,. Criminal Writ Petition No. 1457 of 2003 2 The facts in brief are that the petitioner was deployed at Border Out Post Harmukh while he was serving with 21 Battalion BSF. On 5.7.2002, he was detailed for observation post duty when he requested his Platoon Havildar Subhash Chand not to detail him on the observation post and to detail him to perform the duty of Langar. It is stated that after having performed his duty in Langar when the petitioner returned to Barrack, Subhash Chand came there and started abusing him. Despite pleadings by the petitioner, the said Subhash Chand did not refrain from hurling abuse at him and thereafter took the petitioner before Sub Inspector Ram Chand. The petitioner was sent to medical examination, which was conducted by Dr. Mukesh Saxena. The doctor opined that the petitioner had consumed liquor. On the basis of medical report and the report made by Havildar Subhash Chand that the petitioner had disobeyed to perform the duty at BOP post, he was charge sheeted on the 3 counts as noted. Having been so charged and after holding the preliminary investigation, the petitioner was informed that he would be tried by SSFC on 07.12.2002. The petitioner allegedly made prayer for engaging the counsel, which was refused. Thereafter, he claimed that he was informed that he stood dismissed from the service. He accordingly pleads that the trial conducted by the SSFC is illegal or without complying with the statutory rules and regulations. The petitioner pleads that his plea was just recorded without giving him any opportunity to defend himself. He has also claimed that he had not pleaded guilty but the plea of guilty was recorded and the Commandant had failed to follow the prescribed procedure under Criminal Writ Petition No. 1457 of 2003 3 Rule 143 of the BSF Rules. In response to the notice issued, the written statement has been filed on behalf of the respondents, it is pleaded that in view of the law laid down by the Hon'ble Supreme Court in the case of Union of India versus Maj. A.Hussein AIR 1998 S.C. 577, this Court can not re-appreciate the evidence to come to a different finding. It is also pointed out that this Court would have a limited jurisdiction to interfere in such like proceedings and in this regard reference is made to some case law. While responding to the facts, it is stated that on 04.07.2002, the petitioner informed SI Ramesh Chand that he was suffering from tooth ache and requested permission to visit Srikaranpur for treatment. The petitioner reported back at BOP in the evening. He came in a civil tractor and was found to be in the state of intoxication. As per the evidence, he was barely able to walk. The petitioner had earlier been detailed to perform duty on Naka and seeing his condition, HC Subhash Chand was sent for duty. When detailed for duty on the next morning, he refused to obey the command. When asked the reason in this regard, the petitioner stated that he is not feeling well. The petitioner then was detailed to perform the duty in kitchen. Instead of performing the duties, he slipped away and went to the barrack for rest. He thus refused to perform his duties. He was accordingly brought before the Company Commandant. The petitioner was also sent for medical examination on the matter being reported against him. On the basis of medical report he was charge sheeted. The record of evidence was prepared where these witnesses were examined. On the basis Criminal Writ Petition No. 1457 of 2003 4 of evidence so recorded, 3 charges as alleged against the petitioner surfaced. Accordingly, he was put to trial by the SSFC on 07.12.2002, when he pleaded guilty and thus was ordered to be dismissed from service. The plea of the petitioner in regard to violation of various procedural law and the rules have been denied. The first submission which is made to challenge the proceeding is that without calling any prosecution witness, the evidence recorded at pre-trial stage was attached with the proceedings. It is also stated that the evidence contained in the record of evidence negated the plea of guilty, which was recorded on behalf of the petitioner and thus revealed contravention of Rule 143 (4) of BSF Rules. It appears from the averment that the appellant is disputing the plea of guilty recorded on his behalf by saying that his plea was illegally recorded and that the petitioner did not understand the effect of pleading guilty. Reference is also made to the fact that the averment of charge under Section 21(2) of the BSF Act, for disobeying the lawful command is perverse on the ground that the person who had allegedly ordered the petitioner i.e. Head Constable Subhash Chand during his cross examination admitted that the petitioner was detailed for this duty by the Company Commandant. The finding on the second charge is contested on the ground that Havildar Subhash Chand was inimical to the petitioner. The charge of intoxication is contested on the ground that there is contradiction in the material evidence and that of the oral evidence of the doctor and the certificates issued by him. It is accordingly pleaded that the finding of all the 3 charges are perverse. Criminal Writ Petition No. 1457 of 2003 5 The pleas as raised on behalf of the petitioner cannot be accepted. As noted, the petitioner had pleaded guilty to the charges before the SSFC. The plea of guilty of all the charges is duly recorded in the proceedings, copy of which has been annexed with the writ petition. The certificate showing that upon plea of guilty offered by the petitioner, he was explained the meaning of the charge, to which he had pleaded guilty and thereafter it was ascertained from the petitioner that he understands the nature of the charges to which he pleaded guilty. It is also recorded that the petitioner was informed about the difference in procedure that would be followed on his plea of guilty and the effect thereof. Having thus satisfied, the plea of guilty offered by the petitioner was accepted and he was accordingly found guilty. This is the procedure which is required to be followed as given in Rule 142 (2) of the BSF Rules. The record of the proceedings of the SSFC would clearly show that the petitioner had offered the plea of guilty unequivocally without having doubt in his mind. This fact is made out from the plea of mitigation made by him after having been found guilty of charges. After recording the finding of guilty on the basis of plea offered by the petitioner, the record of evidence was read and annexed with the proceedings, which is as per the procedure prescribed under Rule 143 of the BSF Rules. Thus the submission made by the petitioner that no witnesses were examined and the record of evidence prepared at the pre-trial stage was annexed is as per the procedure. Rule 143 of the BSF Rules lays down a procedure which is to be followed on a plea of guilty. Rule 143 (3) specifically says that the accused may, after such evidence has been Criminal Writ Petition No. 1457 of 2003 6 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. Pursuant to this, the petitioner was asked in case he wanted to say anything in mitigation of punishment. The petitioner thereafter had given a written application for plea of mitigation, which was marked and annexed with the proceedings. In this application the petitioner himself has stated that he was deployed at Harmukh BOP on 07.05.2002 and he refused to go on duty and also spoke rudely to his senior. He has also conceded that he had consumed 3 pegs of Rum for which he was tried by the SSFC. He finally stated that he had committed all the 3 offences and sought pardon. Not only that he further submitted that he will behave in future and will not to commit any such mistake. In this background of the submission made, it cannot be said that the petitioner has not offered the plea of guilty or that he did not understand the effect of pleading guilty. The petitioner cannot be heard to dispute the finding on the charges on merits once he has pleaded guilty. Once he had pleaded guilty, he can be permitted to say that the allegations are not supported by the evidence or are perverse. His plea of guilty would cure the defects in evidence, if any. It is well known principle of law that the plea of guilty cure the defects in the evidence. Still to satisfy, I have gone through the evidence recorded in the record of evidence. There is nothing to suggest or negate the plea of guilty offered by the petitioner. Even if there was something, which stood to negate some of the allegation made against the petitioner, he withdrew those once he offered a plea of guilty before Criminal Writ Petition No. 1457 of 2003 7 the SSFC. The submission made by the petitioner at the record of evidence stage would also clearly show that he had conceded the allegation and was not seriously disputing the same. In this background, the plea raised by the petitioner to say that the finding returned by the SSFC is perverse and can certainly not be accepted and are accordingly rejected. There is no other plea raised on behalf of the petitioner, which would require consideration. From the record it can be seen, the petitioner had pleaded that the sentence awarded to him is disproportionate to the nature and gravity of the offence and is harsh. The petitioner had nearly 18 years of service to his credit. With the order of dismissal from the service, he has lost the right to pension, which as per him has ruined his entire family. Considering the nature of allegation made, this plea of the petitioner can also not be accepted. The petitioner was required for a duty at the Border Post. When asked to perform this duty he disobeyed the command. Disobedience of lawful command is rather a serious offence under the Scheme of the Act. Not only that he had created a ruckus and used abusive language against his senior. He consumed liquor while he was to perform duty and was found intoxicated. Considering this, the sentence as awarded to the petitioner does not appear to be disproportionate or harsh in any manner and would not call for any interference. There is thus no merit in the writ petition and the same is accordingly dismissed. January 21, 2010 ( RANJIT SINGH ) rts JUDGE