WP(C) 3491/2007 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA JUDGEMENT AND ORDER (ORAL) The petitioner is aggrieved by the Annexure-3 order dated 10.05.2007, pa ssed by the Commandant, 47 Bn, BSF, by which he has been dismissed from service, having found guilty of the charge leveled against him. The petitioner was tried by Summary Security Force Court, held at Bn. HQ 47 Bn. BSF on 10.05.2007, purpo rtedly for committing offence under Section 40 of the BSF Act, 1968. The particu lars of the charge are as under :- U/S 40 of BSF Act 1968 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that he, At BOP Kukradha during the month of Dec 2006 while was performing Border duty in ’A’ Coy, improperly visited the house of Miss Rena Begum, D/o. Late Sh Latif, r /o. Village Baragachhla and made illicit relation with her by giving assurance t o marry her whereas he was already married. Thus bringing bad name to the Force. 2. A Court of Enquiry was ordered by the Commandant, 47 Bn., BSF on 1.4.200 7 to find out the factual position of the purported complaint lodged against the petitioner, pursuant to which the aforementioned charge was framed against him. In the Court of Enquiry, the petitioner was found blameworthy and thereafter an Officer was detailed to prepare Record of Evidence on the aforesaid charge fram ed under Section 40 of the BSF Act. According to the BSF authority, such conduct on the part of the petitioner was prejudicial to good order and discipline of t he Force. 3. On the basis of the facts brought on record in the Court of Enquiry and records of evidence, the petitioner was tried by Summary Security Force Court (S SFC) on 10.5.2007 for purported commission of offence under Section 40 of the Ac t. As noted above, prior to the SSFC trial, which was held on 10.5.2007, a Court of Enquiry and record of evidence under Section 40 of the BSF Act and Rules wer e conducted to find out the factual position of the case. According to the BSF a uthority, a prima facie case having been found against the petitioner, a formal order for assembly of SSFC for trial of the petitioner was issued. 4. The petitioner was issued with the letter dated 9.5.2007 indicating the date of assembly of the SSFC on 10.5.2007. The letter was issued to the petition er by the Commandant, 47 Bn, B SF. According to the respondents, the petitioner was found guilty of the charge on the basis of the evidence on record and therea fter was dismissed from service. Be it stated here that the petitioner was place d under close arrest on 11.4.2007 as per provisions of BSF Rules. As regards the punishment of dismissal from service, the respondents have justified the same a nd have stated that the punishment of dismissal from service was imposed as per Section 48 of the BSF Act, 1968. 5. The charge against the petitioner has been noted above. According to the petitioner, the charge even if it is taken on its face value, could not have le d to initiation of a proceeding in SSFC. It is the stand of the petitioner that he had a good relationship with the girl in question and he never indulged in an y kind of indiscipline warranting any proceeding against him. It is the stand of the petitioner that since he was under close arrest, he did not get adequate op portunity to defend his case and that the respondents in a most arbitrary and il legal manner, dismissed him from service. 6. In the counter affidavit filed by the respondents, they have justified t heir action. It is the stand of the respondents that the petitioner being a marr ied person ought not to have indulged in illicit relationship with another girl alluring her of marriage. According to the respondents, such conduct on the part of the petitioner was unbecoming of a member of the disciplined force. 7. I have heard Mr. M.H. Ahmed, learned counsel for the petitioner as well as Mrs. B. Das, learned CGC. I have also perused the SSFC proceedings file perta ining to the petitioner. 8. There is nothing on record to show that any complaint was lodged against the petitioner in respect of the charge leveled against him. However, in the co unter affidavit, the respondents have enclosed a copy of the complaint purported ly lodged by one Smt. Sufia Begum. As per the said complaint, the petitioner pro mising to marry the girl in question remained with her for 7 days and thereafter declined to accept her. The story narrated in the complaint and the charge fram ed against the petitioner are distinct and different. Moreover, the complaint an nexed to the counter affidavit does not form part of the proceeding. 9. On perusal of the SSFC proceeding file, what is noticed is that during C ourt of Enquiry, certain evidence was taken including that of the alleged victim girl. Although, it was alleged that the petitioner had taken the girl to his na tive place and stayed there for five days but as per the own showing of the resp ondents and as reflected in the proceeding file during the course of recording o f evidence, in absence of any specific date or documentary evidence establishing petitioner’s non-presence in Company / mode of leave, etc. availed of by him, t he Commandant himself recorded the finding that on record the charge of remainin g away from duty alongwith the girl for five days could not be established. 10. It is true that some of the witnesses during the course of recording of evidence stated about the affair that developed between the petitioner and the girl. It is not case of the petitioner marrying another girl during the subsiste nce of his earlier marriage. As per the charge, no marriage took place between t he petitioner and the girl but the petitioner only visited the house of the girl and made illicit relation with her. Other segment of the charge is that he had assured the girl to marry although he was already a married person with children . 11. After recording of the evidence, the matter was placed for SSFC trial, w hich was held on 10.5.2007. On perusal of the proceeding file, what is found is that the petitioner was informed to the SSFC proceeding to be held on 10.5.2007 on 9.5.2007. Thus, on the very following day of furnishing such information, th e SSFC proceeding was held. There is nothing to show that during the SSFC procee ding, witnesses were further examined or the petitioner was allowed the opportun ity to cross examine them. 12. Interestingly, on the date of the proceeding i.e. 10.5.2007, the charge sheet was read out to the petitioner and he was put the question How say you No . 870025895 Constable Prafulla Kumar Nath 47 Bn BSF. Are you guilty or not guilt y of the charge? In reply to the said question, the word Guilty was recorded with the following addition. The accused having pleaded guilty to all the Charges, the Court explains to the accused the meaning of the charge to which he has pleaded guilty and ascertains that the accused understands the nature of the charge to which he has pleaded g uilty. The Court also inform the accused the general effect of the plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge and the ef fect of his plea of guilty, accepts and records the same. The provisions of BSF Rule 142(2) are complied with. 13. Similarly, question No. 2 and 3 along with their answers were recorded a s follows :- Q. No.2 Do you wish to make any Question to statement in reference to the The accused charges or in mitigation of Punishment ? Ans No.2 Answered by No The Accused Q. No.3 Do you wish to call any Question to witness as to Character ? The Accused. Ans No.3 Answer by No The Accused 14. On both the aforesaid two documents, there is no signature of the petiti oner accepting the plea of guilty and answers to question No. 2 and 3. 15. The authority simply by recording the above quoted portion after the wor d Guilty recorded compliance of Rule 142(2) of the BSF Rules. For a ready refe rence, Rule 142 is quoted below :- 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 intell gibly 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 fin ding of the Court ; but before it is recorded, the Court shall ascertain that th e accused understands the nature of the charge to which he has pleaded guilty an d 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 or the difference in p rocedure which will be made by the plea of guilty and shall advise him to withdr aw that plea if it appears from the record or abstract of evidence (if any) or o ther wise that the accused ought to plead not guilty. (3) Where an accused 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 alt ernative 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 effe ct shall be made in the proceedings of the Court. 16. As per requirement of Rule 142 (2) of BSF Rule 1968, if an accused pers on 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 t he nature of the charge to which he has pleaded guilty and shall inform him of t he general effect of that plea, and in particular of the meaning of the charge t o which he has pleaded guilty, and or the difference in procedure which will be made by the plea of guilt and shall advise to withdraw that plea if it appears f rom the record or abstract of evidence (if any) or otherwise that the accused ou ght to plead not guilty. 17. In the instant case, except mechanical recording of the above quoted por tion recording compliance of requirement of Rule 142(2), nothing is discernible that the petitioner was apprised of the consequence of pleading guilty. On perus al of the entire material, what is seen is that authority just on a sheet of pap er recorded the answers by hand (red ink) below the typed questions, in which si gnatures of neither the petitioner nor the BSF authorities, which conducted the SSFC proceeding appear. 18. Having regard to the totality of the circumstances and the nature of the charge leveled against the petitioner, I am of the considered opinion that it w as an act of over enthusiasm on the part of the BSF authority. The girl herself did not lodge any complaint. Merely because the petitioner purportedly maintaine d a relation with the girl and had visited her house, same by itself cannot, in my considered opinion, constitute a conduct leading to SSFC proceeding. There is nothing to show that such conduct on the part of the petitioner in any manner a ttracted indiscipline in the Force. It was an act in isolation in the particular place of posting of the petitioner. 19. During the course of recording of evidence, certain statements of witnes ses were recorded and thereafter on the basis of such evidence, SSFC proceeding was ordered on 9.5.2007. On the very next day i.e. 10.5.2007 the SSFC proceeding was drawn up and on the plea of acceptance of guilt by the petitioner, the proc eeding was closed with awarding of penalty of dismissal on the petitioner on the same very day i.e. 10.5.2007. Thus, the entire proceeding was vitiated not only by error of judgement but also by way of procedural irregularity in conducting the same. 20. For all the aforesaid reasons, I am inclined to accept the writ petition by granting the prayer made therein. Consequently, the impugned order of dismis sal from service dated 10.5.2007 imposed on the petitioner stands interfered wit h and the same is set aside and quashed. Consequently, the petitioner shall be e ntitled to get reinstatement in service, without however, any arrear salary. 21. Writ petition is allowed to the extent indicated above. There shall be n o order as to costs.