CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 21, 2010 Dhir Singh .....Petitioner VERSUS Union of India and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Munish Behl, Advocate, for the petitioner. Mr. Anil Rathee, Advocate, Senior Panel Counsel for UOI. **** RANJIT SINGH, J. This order will dispose of Criminal Writ Petition Nos.86 of 2004 (Dhir Singh Vs. Union of India and others), 87 of 2004 (Balwinder Singh Vs. Union of India and others), 88 of 2004 (Ajit Singh Vs. Union of India and others), 89 of 2004 (Harbans Singh Vs. Union of India and others), and 245 of 2002 (Bachan Singh Vs. Union of India and others). Challenge in the present bunch of writ petitions is to the proceedings of a Summary Security force Court (for short, “SSFC”), CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 2 }: which separately tried all the petitioners for an identical offence under Section 40 of the Border Security Force Act, 1968 (for short, “BSF Act”) and sentenced them to different terms. The petitioners in these petitions were sentenced as under:- Crl.Writ Petition No. Name of the petitioner Sentence awarded Date 86 of 2004 Dhir Singh Six months rigorous imprisonment coupled with dismissal from service. 31.8.1985 245 of 2002 Bachan Singh Six months rigorous imprisonment coupled with dismissal from service. 26.2.1986 87 of 2004 Balwinder Singh One year rigorous imprisonment coupled with dismissal from service. 31.8.1985 88 of 2004 Ajit Singh Four months rigorous imprisonment coupled with dismissal from service. 31.8.1985 89 of 2004 Harbans Singh Nine months rigorous imprisonment coupled with dismissal from service. 31.8.1985 The petitioner (in Crl.Writ Petition No.86 of 2004) was charge-sheeted on 28.8.1985, for an offence under Section 40 of the BSF Act for having committed an act prejudicial to good order and discipline of the force, particulars averring that while being posted at BOP Naushera Dhalla, 103 Bn BSF during the month of May 1985, improperly helped in giving safe passage to smugglers across the CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 3 }: international border. Having framed this charge against the petitioner, he was put to trial by SSFC on 31.8.1985. Similarly, petitioner (in Crl.Writ Petition No.245 of 2005) was also charge- sheeted on 28.8.1985, for the same offence for having committed an act prejudicial to good order and discipline of the force by stating that that while being posted at BOP Daoke, 103 Bn BSF during the months December and January 1986, for giving safe passage to smugglers across the border and did not report about it to any of his superior office and also accepted his share of improperly taken money from Sh.P.Ethiraj, Assistant Commandant. Having framed this charge against the petitioner, he was put to trial by SSFC on 26.2.1986. In the same way, the petitioners in Criminal Writ Petition Nos.87, 88 and 89 were charged for helping the smugglers in giving safe passage to them across the international border and accordingly charge was framed on 31.8.1985. It is pleaded that the trial was concluded within 55 minutes with the award of sentence as noticed above. It is averred in the petition that investigation of the case was conducted under Chapter VII dealing with investigation etc. It is further stated that Commandant A.S.Ghuman had directed Deputy Commandant to record evidence, known as “record of evidence” vide his order dated 17.8.1985. Statements of three witnesses were recorded on 17th, 19th and 20th of August, 1985. Thereafter, the petitioner was issued statutory warning as envisaged under Rule 48(3) of the Border Security Force Rules, 1969 (for short, “the Rules”) and ultimately the petitioner put to trial on 31.8.1985. The case pleaded is that the statements of witnesses CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 4 }: were compulsorily required to be delivered to the petitioner under Rule 49(3) of the rules prior to recording his statement, which was not done. It is urged that this Rule would require 24 hours' notice between the handing over the statement and recording of the statement of the accused petitioner. Plea further is that the charge framed against the petitioner was completely vague and incomplete. Though not pleaded in this manner, the counsel would submit that extra judicial confession made before M.S.Yadav, deputy Commandant examined as PW1 at the record of evidence, can not be relied upon as the said confession was made when the petitioner was in custody of the police. Thus, the voluntary nature of this confessional statement is disputed. The petitioner had filed a petition under section 117 of the BSF Act against the finding and sentence, which was rejected on 27.1.1986. Now the petitioner has impugned the said order on the ground that this was not passed by application of judicial mind. In response to a notice, written statement has been filed. As per the stand of the respondent, the petitioner, when produced before the SSFC, pleaded guilty to the charge and thereafter provisions of Rule 142 of the rules were complied with. Thus, the judicial confession made by the petitioner before the duly constituted Court is pressed into service by the respondents to contest the claim made by the petitioner in his writ petition. It is also pointed out that statements of all the witnesses during the record of evidence were recorded in the presence of the petitioner. The other assertions made on behalf of the petitioner are disputed. It is stated that Rule 49 of the rules has no applicability in CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 5 }: this regard. Accordingly, it is prayed that no case for interference in exercise of writ jurisdiction is made out. Identical pleas are raised in Criminal Writ Petition Nos.87, 88, 89 of 2004 and 245 of 2002. Similar stand is taken by the respondents to defend the claim made in these writ petitions. At the outset, Mr.Rathee has drawn my attention to an order passed in Civil Writ Petition No.560 of 2001 (Balbir Singh Vs. Union of India and others) decided on 2.3.2006 by this Court. Balbir Singh, petitioner therein was tried by SSFC for identical allegation while he was posted in the same Battalion. In fact, five writ petitions containing identical challenge and different persons tried for identical offence are listed for hearing together. The challenge being on identical grounds, which has been negated by this Court, there would not have been much need to consider the pleas again over in these writ petitions. Still, I have considered these pleas raised before me. It is first submitted that extra judicial confessions allegedly made by the petitioners were so made while they were in custody. No other additional pleas are found to have been raised in these petitions. The plea about extra judicial confession as made has not been so averred in the petitions but still I have considered the same. Even if it is taken so for the sake of arguments, this will not benefit to the petitioners in any manner. If this extra judicial confession made before M.S.Yadav is excluded from consideration having not been voluntarily made, still the judicial confession made by the petitioners before the Court where they offered a plea of guilty would be available and would not suffer from any such infirmity. Concededly, the petitioners were not under any custody while they were produced CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 6 }: before the Court. The plea of guilty offered by them before the Court is not stated to be on account of any influence. This plea was voluntarily made before the Court. It is also clear that the petitioners had offered this plea of guilty being fully aware of the implication and understanding the effect thereof. Thus, the submission that extra judicial confession made by the petitioners can not be taken into consideration would be a plea without any effect on the case. The plea that the trial was concluded within 55 minutes can not be urged to show that the trial was concluded in hurry. Hardly any time would be needed to complete the proceedings, when the person pleads guilty. The procedure, which is required to be adopted on plea of guilty of offence is offered is given in rule 143 of the rules, which reads as under:- “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 of “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 CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 7 }: (f 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 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 withdrawn. (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- CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 8 }: 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 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.” What all is required is that an accused person pleading guilty is required to be made to understand the nature of plea, its effect and difference in procedure. Having ascertain that he understand the plea offered by him, the Court is to accept and record this as finding of the Court. Thereafter the record of evidence, which was prepared earlier is required to be read and annexed with the proceedings. This would hardly take any time and time of 55 minutes, which was taken, would sufficiently indicate that due procure was indeed followed. Once the plea of guilty is accepted, then the defect in evidence would stand cured. The plea of guilty would cure any difficulty in the evidence. Plea that the charge preferred against the petitioners is vague is again erroneous. In fact similar argument was raised in Civil Writ Petition No.560 of 2001 referred to above and negatived. The petitions were charged under Section creating offence under the BSF Act. The particulars gave clear information to the petitioners about the nature of allegations made against them to which they pleaded guilty. The charges can not be said to be vague in any manner. Nothing is otherwise urged to substantiate this limb of the CRIMINAL WRIT PETITION NO.86 OF 2004 :{ 9 }: submissions. There is, thus, no merit in these writ petitions. The same are accordingly dismissed. January 21, 2010 ( RANJIT SINGH ) khurmi JUDGE