[2023] 3 S.C.R. 431

B. S. HARI COMMANDANT

UNION OF INDIA & ORS.

(Criminal Appeal No(s). 1890 of 2014)

APRIL 13, 2023

[KRISHNA MURARI AND

AHSANUDDIN AMANULLAH, JJ.]

Border Security Force Act, 1968 - Appellant-Commandant in Border Security Force was sentenced to 10 years' rigorous imprisonment; imposed fine of Rs. 1,00,000/- and dismissed from service for allegedly permitting smuggling of contraband goods from India to Pakistan from Border fencing gate under his control - Held: Though in the armed forces, including the paramilitary forces, utmost discipline, unity of command are the sine qua non, the doctrine of proportionality still holds the field - In the present case, there is no direct evidence against the appellant - Except the statement of the Subedar (who was the actual in-charge of the area where the activity allegedly occurred) roping in the appellant, there is no material against him - Statement of a single person alone, ought not to have resulted in his conviction without other material(s) incriminating him or pointing to his guilt - Thus, in the absence of direct and cogent evidence against the appellant, even if the General Security Force Court (GSFC) was convinced of his guilt, the punishment handed out was too harsh and disproportionate - Appellant was a first-time delinquent and not a habitual offender - Moreover, the appellant has served the country for over 31½ years without blame or blemish and received various awards including medal from Hon'ble the President of India - His track record is otherwise unquestionable - Impugned judgment of High Court set aside - Conviction and sentence awarded by the GSFC set aside - Appellant entitled to full retiral benefits from the date of superannuation till date - Narcotic Drugs and Psychotropic Substances Act, 1985 - Doctrine of Proportionality - Armed Forces.

Constitution of India - Article 226:

Criminal writ petitions - Power of High Courts to sift through evidence - Discussed.

SUPREME COURT REPORTS


Limit on exercise of power - Held: Art.226 is a succour to remedy injustice and any limit on exercise of such power is only self-imposed.

Judgments/Orders - Paragraph-wise numbering in - Held: It is desirable that all Courts and Tribunals, as a matter of practice, number paragraphs in all Orders and Judgments in seriatim - Hon'ble Chief Justices of High Courts to consider adoption of a uniform format for Judgments and Orders, including paragraphing and accordingly direct the Courts and Tribunals subordinate to their High Courts - Directions by Supreme Court.

Allowing the appeal, the Court

HELD: 1.1 In the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command et al are the sine qua non. That said, the doctrine of proportionality still holds the field. In the absence of direct and cogent evidence against the appellant, even if the GSFC was convinced of the appellant's guilt, the punishment handed out was too harsh, paying heed that the appellant would, even then, be a first-time delinquent, and not a habitual offender. Arguendo, that there be some semblance of truth in the allegations, the punishment meted out was disproportionate. [Paras 36, 37][442-H; 443-A-B]

1.2 The appellant has served the country for over 31 ½ years without blame or blemish, and has received various awards, inter alia, including medal from Hon'ble the President of India.

The appellant's track record is otherwise unquestionable. On the alleged criminality, the undisputed and uncontroverted fact remains that the appellant was commanding the Force operating over a large area, including from where the Jerrycans allegedly moved from the Indian side to the Pakistani side. However, it is equally not in dispute that the actual manning of the area is by the subordinate personnel of the Force. In the present instance, the subordinate personnel have been adjudged guilty, indicating their active involvement. Being the persons on the spot, it was their primary responsibility to ensure that no crimes/offences/ questionable incidents took place on their watch. Moreover, there is no direct evidence against the appellant. [Paras 38,

41][443-C, E-G]

1.3 Save and except Subedar DS's statement, roping in the appellant, there is no material against him. Hence, ceteris paribus, without other material(s) incriminating the appellant or pointing to his guilt, the statement of a single person alone, ought not to have, in this instance, resulted in his conviction. At the proximate time, the search of the appellant's house, did not result in recovery of any incriminating documents/articles. Such non-recovery would obviously enure to the appellant's benefit. [Paras 45, 46][445-C- D]

1.4 Article 226 of the Constitution is a succour to remedy injustice, and any limit on exercise of such power, is only selfimposed. The High Courts, under the Constitutional scheme, are endowed with the ability to issue prerogative writs to safeguard rights of citizens. For exactly this reason, this Court has never laid down any strait-jacket principles that can be said to have "cribbed, cabined and confined" the extraordinary powers vested under Articles 226 or 227 of the Constitution. This was a fit case for the High Court to have examined the matter threadbare, more so, when it did not involve navigating a factual minefield. The Impugned Judgement is quashed and set aside. The conviction and sentence awarded by the GSFC is also set aside. The appellant is held entitled to full retiral benefits from the date of his superannuation till date. [Paras 50, 51][446-E-H; 447-A]

E P Royappa v State of Tamil Nadu AIR 1974 SC 555 : [1974] 2 SCR 348 - followed.

Mohd. Jamiludin Nasir v State of West Bengal (2014) 7 SCC 443 : [2014] 14 SCR 1; Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur (2009) 5 SCC 162 : [2009] 4 SCR 589; Surya Dev Rai v Ram Chander Rai (2003) 6 SCC 675 : [2003] 2 Suppl. SCR 290; A V Venkateswaran v Ramchand Sobhraj Wadhwani (1962) 1 SCR 573; U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon (2008) 2 SCC 41 : [2008] 1 SCR 887; Shakuntala Shukla v State of Uttar Pradesh 2021 SCC OnLine SC 672; State Bank of India v Ajay Kumar Sood 2022 SCC OnLine SC 1067 - relied on.

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.


State of Jharkhand v Jitendra Kumar Srivastava (2013) 12 SCC 210 : [2013] 8 SCR 177; Veena Pandey v Union of India (2022) 2 SCC 379; Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174 (HL); Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442; Ranjit Thakur v Union of India (1987) 4 SCC 611 : [1988] 1 SCR 512; Andhra Pradesh Industrial Infrastructure Corporation Limited v S N Raj Kumar (2018) 6 SCC 410 : [2018] 3 SCR 455; D S Nakara v Union of India (1983) 1 SCC 305 : [1983] 2 SCR 165; State of West Bengal v Haresh C Banerjee (2006) 7 SCC 651 : [2006] 5 Suppl. SCR 620; Dr Hira Lal v State of Bihar (2020) 4 SCC 346 : [2020] 2 SCR 907; Radhey Shyam v Chhabi Nath

(2015) 5 SCC 423 : [2015] 3 SCR 197 - referred to.

Case Law Reference

[2013] 8 SCR 177 referred to Para 23

[1988] 1 SCR 512 referred to Para 34

[2018] 3 SCR 455 referred to Para 35

[1983] 2 SCR 165 referred to Para 39

[2006] 5 Suppl. SCR 620 referred to Para 39

[2020] 2 SCR 907 referred to Para 39

[2014] 14 SCR 1 relied on Para 44

[2009] 4 SCR 589 relied on Para 48

[2003] 2 Suppl. SCR 290 relied on Para 49

[2015] 3 SCR 197 referred to Para 49

(1962) 1 SCR 573 relied on Para 50

[2008] 1 SCR 887 relied on Para 50

[1974] 2 SCR 348 followed Para 50

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1890 of 2014.

From the Judgment and Order dated 19.02.2010 of the High Court of Punjab & Haryana at Chandigarh in CRWP No. 3 of 1997.

Vivek Singh, Adv. for the Appellant.

Jayant K. Sud, ASG, Mrs. Sonia Mathur, Sr. Adv., Sanjay Kumar Tyagi, Harish Pandey, Mrs. Swarupama Chaturvedi, S.N. Terdal, Simarjeet Singh Saluja, Ms. Divik Mathur, Ms. Ronika Tater, Ms.

Pratiksha Mishra, Ms. Rupakshi Soni, Nikhil Jaiswal, Arvind Kumar Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

AHSANUDDIN AMANULLAH, J.

Heard learned counsel for the parties.

2. The present criminal appeal is directed against the Final Judgment and Order dated 19.02.2010 (hereinafter referred to as the "Impugned Judgment") [2010 SCC OnLine P&H 2558] rendered by the High Court of Punjab and Haryana at Chandigarh dismissing Criminal Writ Petition No. 03 of 1997 (hereinafter referred to as the "High Court") preferred by the appellant (original writ petitioner). Leave was granted vide Order dated 29.08.2014.

THE FACTUAL PRISM:

3. The appellant joined the Indian Army on 09.02.1964. He was absorbed as an Assistant Commandant in the Border Security Force (hereinafter referred to as the "Force") on 04.06.1969. Thereafter, he was promoted to the post of Commandant in the Force as well as granted selection grade in the rank of Commandant. He was also awarded various medals, including the Police Medal in 1994 by Hon'ble the President of India for rendering about 30 years of unblemished service. Later, he was transferred to Punjab as Commandant of the 1956 Battalion (BN) (BSF) with Headquarters at Mamdot, Punjab.

4. On 05.04.1995, the local police conducted a search and a few Jerrycans of Acetic Anhydride, a controlled substance under Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"), were stated to be located in Pakistani territory and in the fields owned by Indian civilians adjoining the border, for which First Information Report No. 92 dated 05.04.1995 i.e., on the same day, was lodged in Police Station Ferozepur, Punjab by the local police naming two persons viz. Lakhwinder Singh and Surjit Singh @ pahalwan as the accused showing them to be smugglers.

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.


5. On 07.04.1995, the appellant was directed to hand over charge and move to the STC, the Force, Kharkan, where he was placed under arrest. However, search of the appellant's house did not lead to any recovery of any incriminating material(s).

6. On 09.04.1995, a one-man Staff Court of Inquiry was ordered into the incident headed by one Mr. V.K. Sharma. In the said Inquiry, Inspector Didar Singh, who was in actual and physical command and control of the area in the vicinity of which the alleged Jerrycans were recovered, is said to have made a statement that he was involved in the incident at the behest of the appellant.

7. On the basis of the Inquiry Report, the appellant was issued charge sheet dated 04.07.1995 under Sections 40 & 46 of the Border Security Force Act, 1968 (hereinafter referred to as the "BSF Act").

However, the charges, as laid aforesaid, were dropped.

8. Thereafter, the appellant superannuated on 31.08.1995 after rendering service in the Force for 31 years, 6 months and 22 days.

9. On 20.10.1995, a fresh charge sheet containing three charges was served on the appellant. Two charges were under Section 46 of the BSF Act for Civil offence committed in contravention of Section 25 of the NDPS Act and one charge under Section 40 of the BSF Act. Trial against the appellant commenced on 30.10.1995 by convening a General Security Force Court (hereinafter referred to as the "GSFC").

10. The appellant, invoking Article 226 of the Constitution of India (hereinafter referred to as the "Constitution"), filed Writ Petition No. 16008 of 1995 before the High Court, against the rejection of his application questioning jurisdiction of the GSFC, which was dismissed on 18.01.1996.

11. Meanwhile, one accused alleged smuggler in FIR No. 92 dated 05.04.1995 (described supra), namely Surjit Singh @ Pahalwan, moved the High Court, by way of Criminal Miscellaneous No. 10562-M of 1996, seeking quashing of the FIR against him. The ground urged was that, on the date of alleged incident, Surjit Singh @ Pahalwan was lodged in the Central Jail, Amritsar and could not have been involved in the crime.

The said petition was allowed vide order dated 01.11.1996.

12. On 10.04.1996, the GSFC gave its verdict, finding the appellant not guilty of the first charge but guilty of the second and third charges. It sentenced him to 10 years' Rigorous Imprisonment; imposed fine of Rs.

1,00,000/-, and; dismissed him from service. This was confirmed by the Confirming Officers.

13. Statutory petition against his conviction and sentence was then filed by the appellant on 15.05.1996. As the same was not being decided by the concerned authority, the appellant moved the High Court vide Civil Writ Petition No. 13020 of 1996, which was disposed of by order dated 28.08.1996, directing the respondent-Authority to dispose of the statutory petition within a period of two months.

14. Pursuant thereto, the respondent-Authority rejected the appellant's statutory petition on 02.11.1996. In this light, the appellant filed Criminal Writ Petition No. 3 of 1997 before the High Court for quashing his trial and the impugned order therein, as also seeking directions to quash all consequential orders and to release the pensionary and other benefits to the appellant.

15. On 19.09.1997 [1997 SCC OnLine P&H 1176], the appellant was granted bail by the High Court and he remained on bail w.e.f., 19.09.1997 till 19.02.2010.

16. In the meantime, the other co-accused viz. Lakhwinder Singh was discharged by the learned Trial Court in the absence of any evidence.

17. The High Court dismissed Criminal Writ Petition No. 3 of 1997 on 19.02.2010, which is the Impugned Judgment.

SUBMISSIONS BY THE APPELLANT:

18. Learned counsel for the appellant submitted that as far as Charge No.1 was concerned, i.e., of knowingly having permitted Lakhwinder Singh, on the intervening night of 9/10th March, 1995, to take out 30 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan through border fencing gate No. 205 of BOP Barrake under his control, the same was not proved against the appellant.

19. However, the learned counsel for the appellant submitted that Charge No. 2, which was identical though the date(s) were 4/5thApril, 1995, of having knowingly permitted the two smugglers to take out 44 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan from Border fencing gate No. 205 of BOP Barake, under his control has been held to be proved by the GSFC, is clearly unsustainable as one accused Surjit Singh @ Pahalwan was given relief by the High Court by quashing the FIR against him on the ground that he was lodged in

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.

[AHSANUDDIN AMANULLAH, J.]


Central Jail, Amritsar on the said date(s), and the other co-accused Lakhwinder Singh was also discharged by the trial court itself in the absence of any evidence. Thus, according to learned counsel, two persons, stated to have taken away the Jerrycans having themselves been let off, the case against the appellant automatically fails. As far as Charge No. 3, of knowingly acting prejudicial to good order and discipline of the Force during his tenure as Commandant at Mamdot between November, 1994 and April, 1995 of the 67 Battalion of the Force and having improperly influenced Subedar Didar Singh of his unit to facilitate the alleged smuggling of contraband goods from India, is clearly not established for the reason that it was on the statement of the said Didar Singh (who was his subordinate and the actual in-charge of the area where the said activity is alleged to have occurred) has, clearly, made a statement to save himself from the obvious and severe consequences, which would have entailed. Learned counsel submitted that this may even have been at the behest of the superior officers of the appellant, inasmuch as there was genuine apprehension of the same, for the appellant had stoutly refused to oblige his Controlling Officer, on an earlier occasion. It was contended that the trial itself was a nullity as the BSF Act does not envisage the GSFC trying offence(s) under the NDPS Act and it also did not obtain the requisite sanction from the Central Government for initiating trial against the appellant as required under and in terms of Section 59(3) of the NDPS Act. It was further contended that Rule 102 of the BSF Rules, 1969 (hereinafter referred to as "the Rules") provides that only one sentence shall be awarded in respect of all the offences of which the accused is found guilty. However, in the present case three punishments were given, which contravenes Rule 102 of the Rules read with Section 48 of the BSF Act.

20. It was the submission of learned counsel that the sentence of dismissal from service is also illegal as the appellant retired on 31.08.1995, even before the issuance of the charge sheet in question and thus there cannot be any sentence of dismissal from service, which is made clear from Rule 166 of the Rules, which stipulate that the sentence of dismissal shall take effect from the date of promulgation of such sentence or from any subsequent date as may be specified at the time of promulgation, which in the present case is much after the superannuation of the appellant from service. Likewise, it was contended that once the first charge sheet dated 04.07.1995 was dropped, apparently for insufficient evidence, the appellant was required to be discharged under Rule 59(1)(i) of the Rules

and thus, the second charge sheet dated 20.10.1995 is illegal more so since Chapter VIII of the Rules do not contemplate the issuance of any second charge sheet under the BSF Act and the Rules. It was submitted that the Rules specifically provide for amendment of the charge sheet i.e., addition, omission or alteration in the charge by the GSFC; whereas in the instant case, an entirely new charge sheet had been issued by the Additional DIG which tantamounted to, in effect, a second trial which is prohibited under Section 75 of the BSF Act.

21. On the point of withholding the appellant's pension, gratuity and other benefits, it was submitted that having already superannuated on 31.08.1995, there was no authority vested in the Force to withhold the same and due to such arrogant and arbitrary action, the appellant, now aged about 82 years and having superannuated about almost 28 years back, is in a very poor financial condition and is unable to sustain himself, having no means for his daily needs and medical expenses.

22. Learned counsel submitted that neither the BSF Act nor the Rules envision withholding pension, gratuity, leave encashment and other dues/benefits of any retiree, after retirement without there being a specific order under Section 48(1)(k) & 48(1)(l) of the BSF Act, which in the present case has admittedly, not been passed. Even otherwise it was contended that withholding pension is violative of Rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the Pension Rules") which provide that only Hon'ble the President of India can withhold pension of an employee.

23. In support of such contention, reliance was placed on the decisions of this Court in State of Jharkhand v Jitendra Kumar Srivastava, (2013) 12 SCC 210, the relevant being at Paragraph No. 16 holding that a person cannot be deprived of his pension without the authority of law, which is the constitutional mandate enshrined in Article 300A of the Constitution of India, and further, in Veena PandeyvUnion of India, (2022) 2 SCC 379, the relevant being at Paragraph No. 10 where it was held that pension is the deferred portion of compensation for rendering long years of service and is a hard-earned benefit accruing to an employee and has been held to be in the nature of property. We note that the appellant had addressed representations to different authorities seeking release of his dues or a copy of the order by which the same have been withheld, filed alongwith the application seeking early hearing i.e. Crl. M.P. No. 74756/2021 at Pages 16-17.

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.

[AHSANUDDIN AMANULLAH, J.]


24. It was also submitted that as far as Acetic Anhydride is concerned, it is neither a narcotic drug nor a psychotropic substance, but only a controlled substance under Section 9A of the NDPS Act, punishable under Section 25A of the NDPS Act.

25. Summing up, it was submitted by learned counsel for the appellant that there have also been violations of other statutory provisions of the BSF Act and the Rules and the principles of natural justice were not conformed to during trial.

SUBMISSIONS OF THE RESPONDENTS:

26. Per contra, learned senior counsel for the respondents supported the Judgment under challenge. It was submitted that there was no infirmity in the appellant being tried separately as he was charged under the NDPS Act and under Sections 40 & 46 of the BSF Act read with Section 25 of the NDPS Act.

27. It was urged that Subedar Didar Singh was tried and convicted by GSFC and sentence of forfeiture of ten years of service for the purpose of pension and severe reprimand were handed out; Sub. N. K.

Satpal was tried by GSFC and inflicted with reduction to the rank of Lance Naik (L/NK), and Constable Keshav Singh was tried by the GSFC and awarded sentence of rigorous imprisonment for 45 days in force custody. It was contended that the appellant cannot derive benefit from the discharge of the two purported smugglers as they were charged with the offence of placing the contraband substance on the spot from where it was recovered, while the appellant was charged under Section 25 of the NDPS Act. It was submitted that the contraband items could not have been taken outside the area controlled by the Force, which was under the overall control of the appellant, to the Pakistani side without it having passed through the gates which were manned by the personnel of the Force. Further, it was submitted that Surjit Singh @ Pahalwan was given relief by quashing the FIR concerned, as he was able to establish his incarceration in jail on the date of the incident.

28. Learned counsel submitted that as per the secret information received by the appellant, the Jerrycans of Acetic Anhydride were placed near the international borders by the two smugglers with the help of the officials of the Force and even if the said two persons were the lead perpetrators, the role of the appellant and other officers/personnel of the Force, in aiding such movement was clearly established. It was submitted

that the appellant was in overall command of the area and is, hence, responsible for the incidents narrated hereinbefore.

29. On the question of pension, gratuity and other retiral benefits being withheld, learned counsel for the respondents submitted that the appellant had been paid GPF and CGEIS. Further, it was stated at the Bar that he had also been paid provisional pension under Rule 69 of the Pension Rules, and only later on, the same was stopped, taking recourse to Rule 24 of the Pension Rules, as dismissal from service entails forfeiture of past service.

ANALYSIS, REASONING AND CONCLUSION:

30. Having perused the materials on record and surveyed the relevant judicial pronouncements, upon an overall examination, this Court is unable to uphold the view taken by the learned Single Bench of the High Court.

31. Procedural deficiencies in the process and/or trial, canvassed by learned counsel for the appellant, have purposely not been dealt with.

Expressing no opinion thereon, we leave those question(s) of law open for adjudication in a more appropriate case, as we are interfering on merits.

32. In Council of Civil Service Unions v Minister for the Civil Service, [1984] 3 WLR 1174 (HL), the House of Lords, speaking through Lord Diplock, stated:

"… Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; …"

(emphasis supplied)

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.

[AHSANUDDIN AMANULLAH, J.]


33. In Bhagat Ram v State of Himachal Pradesh, (1983) 2 SCC 442, it was opined:

"15. … It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. … " (emphasis supplied)

34. In Ranjit Thakur v Union of India, (1987) 4 SCC 611, this Court, in the circumstances therein, commented, at paragraph no. 27, that:

"… the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.".

35. In Andhra Pradesh Industrial Infrastructure Corporation Limited v S N Raj Kumar, (2018) 6 SCC 410, this Court exposited:

"20.… In the realm of Administrative Law "proportionality" is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities and reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise - the elaboration of a rule of permissible priorities [Union of India v. G.

Ganayutham, (1997) 7 SCC 463: 1997 SCC (L&S) 1806].

De Smith [Judicial Review of Administrative Action (1995), para 13.085, pp. 601-605; see also, Wade: Administrative Law (2009), pp. 157-158, 306-308.] also states that "proportionality" involves "balancing test" and "necessity test". The "balancing test" permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations." (emphasis supplied)

36. We are quite conscious that in the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command et al are the sine qua non. That said, the doctrine of proportionality still holds the field.

37. In the absence of direct and cogent evidence against the appellant, even if the GSFC was convinced of the appellant's guilt, the punishment handed out was too harsh, paying heed that the appellant would, even then, be a first-time delinquent, and not a habitual offender.

Arguendo, that there be some semblance of truth in the allegations, the punishment meted out, in our considered view, was disproportionate.

38. Another factor which has nudged this Court to introspect vis- à-vis proportionality herein, is that the appellant has served the country for over 31 ½ years without blame or blemish, and has received various awards, inter alia, including medal from Hon'ble the President of India.

The appellant's track record is otherwise unquestionable.

39. There is no quarrel with the propositions enunciated in Jitendra Kumar Srivastava (supra) and Veena Pandey (supra). The need to restate the settled position of law in, inter alia, D S Nakara v Union of India, (1983) 1 SCC 305; State of West Bengal v Haresh C Banerjee,

(2006) 7 SCC 651, and; Dr Hira Lal v State of Bihar, (2020) 4 SCC 346, is obviated - this Court has taken the consistent view that a person cannot be deprived of pension dehors the authority of law.

40. If things stood only thus, we may have considered remanding the matter back to the GSFC. But, given the long period of time elapsed, the age of the appellant, and our finding below on the evidentiary aspect, we refrain from adopting that course of action.

41. On the alleged criminality, the undisputed and uncontroverted fact remains that the appellant was commanding the Force operating over a large area, including from where the Jerrycans allegedly moved from the Indian side to the Pakistani side. However, it is equally not in dispute that the actual manning of the area is by the subordinate personnel of the Force. In the present instance, the subordinate personnel have been adjudged guilty, indicating their active involvement. Being the persons on the spot, it was their primary responsibility to ensure that no crimes/ offences/questionable incidents took place on their watch. Moreover, there is no direct evidence against the appellant.

42. Illustratively, it would not be out of place to draw an analogy from a situation where a crime occurs under the jurisdiction of the Superintendent of Police and in the criminal proceedings emanating therefrom, some police personnel are held guilty, and thereafter, a criminal case as also departmental proceedings, based on such acts of

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.

[AHSANUDDIN AMANULLAH, J.]


commissions or omissions, is opened against the said Superintendent of Police, on the premise that such incident transpired under his overall watch and control. This would be an extreme and absurd extension of the principle of dereliction of duty and/or active connivance, in the absence of overwhelming material establishing guilt, or at the very least, negating the probability of his innocence.

43. This Court would hasten to add that it should not be construed that the appellant, being the Commandant, had no responsibility/duty to prevent such incident, but to stretch it to the extent to label him an active partner and/or facilitator of such crime is wholly unjustified, having regard to the present factual matrix. Notably, solely on the strength of the statement of Subedar Didar Singh - who is said to have confessed to his involvement in the incident but goes on to add that it was at the behest of and upon the direction of the appellant - the appellant was subjected to punishment.

44. In Mohd. Jamiludin Nasir v State of West Bengal, (2014) 7 SCC 443, examining Sections 10 and 30 of the Evidence Act, 1872, it was held:

"144. Going by the above provisions, the relevance, efficacy and reliability of the confessional statement of appellant Nasir when examined on the touchstone of Sections 10 and 30 of the Evidence Act, it will have to be stated that the confession of a co-accused cannot be treated as substantive evidence to convict other than the person who made the confession on the evidentiary value of it. It is, however, well established and reiterated in several decisions of this Court that based on the consideration of other evidence on record and if such evidence sufficiently supports the case of the prosecution and if it requires further support, the confession of a co-accused can be pressed into service and reliance can be placed upon it. In other words if there are sufficient materials to reasonably believe that there was concert and connection between the persons charged with the commission of an offence based on a conspiracy, it is immaterial even if they were strangers to each other and were ignorant of the actual role played by them of such acts which they committed by joint effort. Going by Section 30 of the Evidence Act, when more than one person are being tried jointly for the same offence and a confession

made by one of such persons is found to affect the maker as well as the co-accused and it stands sufficiently proved, the Court can take into consideration such confession as against other persons and also against the person who made such confession from the above proposition, we can make reference to the decisions of this Court in Natwarlal Sakarlal Mody v.

State of Bombay [(1963) 65 Bom LR 660 (SC)] and Govt. (NCT of Delhi) v. Jaspal Singh [(2003) 10 SCC 586 : 2004 SCC (Cri) 933]."

(emphasis supplied)

45. As emphasised hereinbefore, save and except Subedar Didar Singh's statement, roping in the appellant, there is no material against him. Hence, ceteris paribus, without other material(s) incriminating the appellant or pointing to his guilt, the statement of a single person alone, ought not to have, in this instance, resulted in his conviction.

46. This Court is mindful that at the proximate time, the search of the appellant's house, did not result in recovery of any incriminating documents/articles. Such non-recovery would obviously enure to the appellant's benefit.

47. While declining to consider the plea raised of insufficiency of evidence, the learned Single Bench, at page 13 (of 19) of the Impugned Judgment, has commented:

"The finding by a Security Force Court on the basis of appreciation of evidence would be beyond the purview of a writ Court as has been consistently held by various Courts including the Hon'ble Supreme Court."

48. The High Court ought to have been cognizant that, considering the seriousness of the issue(s) raised, it was not denuded of the power to sift through the evidence, even in a criminal writ petition. This Court in Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur, (2009) 5 SCC 162, held:

"48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfilment of other conditions, could even convert a revision application or a writ petition into an appeal

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.

[AHSANUDDIN AMANULLAH, J.]


or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out."

(emphasis supplied)

49. In respectful agreement with the above statement of law, we reiterate that High Courts, under Articles 226 and/or 227, are to exercise their discretion "… solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge.", as highlighted in Surya Dev Rai v Ram Chander Rai, (2003) 6 SCC

675. This guiding principle still governs the field, and the 3-Judge Bench in Radhey Shyam v Chhabi Nath, (2015) 5 SCC 423 had only partly overruled Surya Dev Rai (supra) in terms below:

"29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.

29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.

29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] is overruled."

50. Article 226 of the Constitution is a succour to remedy injustice, and any limit on exercise of such power, is only self-imposed. Gainful reference can be made to, amongst others, A V Venkateswaran v Ramchand Sobhraj Wadhwani, (1962) 1 SCR 573 and U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon, (2008) 2 SCC 41. The High Courts, under the Constitutional scheme, are endowed with the ability to issue prerogative writs to safeguard rights of citizens. For exactly this reason, this Court has never laid down any strait-jacket principles that can be said to have "cribbed, cabined and confined" [to borrow the term employed by the Hon. Bhagwati, J. (as he then was) in E P Royappa v State of Tamil Nadu, AIR 1974 SC 555] the extraordinary powers vested under Articles 226 or 227 of the Constitution.

Adjudged on the anvil of Nawab Shaqafath Ali Khan (supra), this was a fit case for the High Court to have examined the matter threadbare, more so, when it did not involve navigating a factual minefield.

51. For reasons aforenoted, this criminal appeal succeeds and stands allowed. Consequently, (a) the Impugned Judgement is quashed and set aside, and; (b) the conviction and sentence awarded by the GSFC

dated 10.04.1996 is also set aside. The appellant is held entitled to full retiral benefits from the date of his superannuation till date. All payments due to him be processed and made within twelve weeks from today, albeit after adjusting amount(s), if any, already paid.

52. Costs made easy.

ADDITIONAL DIRECTIONS:

53. The Impugned Judgment annexed in the paperbook is a certified copy obtained from the High Court. However, it is not numbered paragraph-wise.

54. In Shakuntala Shukla v State of Uttar Pradesh, 2021 SCC OnLine SC 672, this Court had the occasion to observe:

"35. … A judgement should be coherent, systematic and logically organised …".

55. Likewise, in State Bank of India v Ajay Kumar Sood, 2022 SCC OnLine SC 1067, this Court opined:

"21.It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility of the judgments. A Table of Contents in a longer version assists access to the reader."

(emphasis supplied)

56. It is desirable that all Courts and Tribunals, as a matter of practice, number paragraphs in all Orders and Judgments in seriatim, factoring in the judgments afore-extracted.

57. The learned Secretary-General shall circulate this judgement to the learned Registrars General of all High Courts, to place the same before Hon'ble the Chief Justices, to consider adoption of a uniform format for Judgments and Orders, including paragraphing. The learned Chief Justices may direct the Courts and Tribunals subordinate to their High Courts accordingly as well.

Divya Pandey Appeal allowed. (Assisted by : Shevali Monga, LCRA)

B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.

[AHSANUDDIN AMANULLAH, J.]