Simultaneous Criminal and Departmental Proceedings in Sexual Misconduct Cases within Uniformed Forces: Commentary on Akhand Prakash Shahi v. Union of India & Anr.

Simultaneous Criminal and Departmental Proceedings in Sexual Misconduct Cases within Uniformed Forces: Commentary on Akhand Prakash Shahi v. Union of India & Anr., J&K High Court (2025)

1. Introduction

This commentary analyzes the judgment of the High Court of Jammu & Kashmir and Ladakh at Srinagar in WP(C) No. 1876/2025 c/w WP(C) No. 3128/2023 & CCP(S) No. 32/2024, titled Akhand Prakash Shahi v. Union of India & Anr. (Border Security Force), decided on 14 November 2025 by Justice Sanjay Dhar.

The case arises from allegations of sexual exploitation made by a woman Assistant Sub-Inspector (Ministerial) of the Border Security Force (BSF) against the petitioner, an Assistant Commandant in the BSF, on the ground that he had sexual relations with her on a false promise of marriage. The matter has both criminal and departmental dimensions:

  • A criminal case under Section 376 of the Indian Penal Code (IPC) (rape) is pending before the Additional Sessions Judge, Dwarka, New Delhi.
  • Parallelly, the BSF has initiated departmental proceedings under Rule 173 of the BSF Rules, 1969, along with an order of suspension under Rule 40A(1).

The petitioner assailed:

  • The initiation and continuation of the departmental enquiry under Rule 173 BSF Rules and the rejection of his representation (WP(C) No. 3128/2023), and
  • The order dated 04.07.2025 extending his suspension (WP(C) No. 1876/2025), seeking reinstatement pending the criminal trial.

A connected contempt petition, CCP(S) No. 32/2024, arose out of interim directions passed earlier in the writ proceedings.

The case presented two core legal questions:

  1. Can criminal proceedings and departmental proceedings arising out of the same set of facts, particularly involving sexual misconduct, proceed simultaneously?
  2. Is the petitioner’s prolonged suspension—caused in part by judicial stay of departmental proceedings at his own instance—liable to be quashed as a violation of Article 21 or as punitive in nature?

Additionally, the Court had to address whether alleged sexual exploitation of a junior colleague under a false promise of marriage is a matter of purely private life, or whether it legitimately constitutes service misconduct warranting departmental action in a uniformed force.

2. Summary of the Judgment

The High Court dismissed both writ petitions and disposed of the contempt petition as infructuous. The key holdings are:

  • Simultaneous Proceedings Permissible: There is no legal bar on simultaneous criminal and departmental proceedings. Departmental proceedings need not be stayed merely because a criminal trial on the same facts is pending. A stay is warranted only when:
    • the criminal charge is of a grave nature, and
    • the case involves complicated questions of law and fact, and
    • continuation of departmental proceedings is likely to prejudice the defence in the criminal trial.
    These conditions were held not satisfied in the present case.
  • Not a Purely Private Matter: Allegations that an officer of a disciplined force has sexually exploited a junior member of the same force on a false promise of marriage constitute not only a possible criminal offence under Section 376 IPC but also clear service misconduct. The BSF is justified in instituting departmental action; the matter is not merely private.
  • No Prejudice to Defence: The petitioner’s claim that his defence in the criminal trial would be compromised by disclosure in departmental proceedings was rejected. The Court found that he had already disclosed his defence extensively in:
    • writ petitions before the High Court,
    • representations to the BSF authorities, and
    • his bail application before the criminal court.
  • Suspension Valid; Delay Attributable to Petitioner: The Court rejected the challenge to continued suspension. It held that:
    • Departmental proceedings were stayed at the petitioner’s own instance via an interim order dated 04.12.2023.
    • He cannot now contend that prolonged suspension, driven by that very stay, amounts to illegal or punitive action.
  • Contempt Petition Rendered Infructuous: With the disposal of the main writ petitions, the interim order from which the contempt arose stood merged in the final judgment; thus, no further orders in contempt were required.

3. Factual Matrix and Procedural History

3.1 The Allegations and Criminal Case

The complainant, a woman ASI (Ministerial) in BSF, allegedly circulated a message in October 2020 inviting BSF personnel interested in marriage to contact her. According to her complaint:

  • The petitioner responded and expressed willingness to marry her.
  • They met in Radisson Blu Hotel, Dwarka from 28.12.2020 to 30.12.2020, and during this period the petitioner allegedly had sexual intercourse with her repeatedly on the assurance of marriage.
  • In February 2021, they again met in Radisson Blu Hotel, Mahipalpur, where he allegedly repeated the same conduct.
  • In March 2021, they purportedly met again at a hotel near Delhi Airport, with sexual relations once more on the same alleged premise.
  • He is alleged to have assured her that he would marry her even if he had to “go to court.”
  • Later, in December 2021, she claims to have discovered:
    • that he had a six-year relationship with another woman from Meghalaya, allegedly having married her, and
    • that he had become engaged to yet another girl.

On these allegations, an FIR No. 108/2022 under Section 376 IPC was registered at Police Station Dwarka (North), New Delhi. A charge-sheet was filed, the petitioner was granted bail, and the trial before the Additional Sessions Judge is ongoing.

3.2 Departmental Complaint and Enquiry

Separately, on 15.07.2022, the complainant addressed a complaint to the BSF authorities, substantially repeating the same allegations of rape, threats, and blackmail. Being informed of the FIR and the internal complaint, the BSF initiated a Staff Court of Enquiry under Rule 173 of the BSF Rules, 1969 by order dated 28.10.2023. The terms of reference were to:

“Investigate into the allegations of rape, threatening and blackmail leveled by the lady ASI against the petitioner which amounts to misconduct against a junior member of the Force.”

3.3 Suspension under Rule 40A BSF Rules

Given the gravity of the allegations, the petitioner was:

  • Placed under suspension on 24.04.2023 under Rule 40A(1) of the BSF Rules.
  • The suspension was confirmed via order dated 15.05.2023, following directions from the Delhi High Court in WP(C) No. 7343/2023.
  • Subsequent reviews and extensions were conducted, including an order dated 11.01.2024 extending suspension by 180 days from 19.01.2024.
  • The final review order impugned in WP(C) No. 1876/2025 was dated 04.07.2025, extending suspension from 12.07.2025 to 07.01.2026.

3.4 Multiple Writ Petitions and Interim Orders

The petitioner engaged in complex litigation before both Delhi High Court and the J&K High Court:

  • Delhi High Court – WP(C) No. 7343/2023: Challenged initial suspension. Disposed of on 30.05.2023 with a direction that the petitioner be intimated regarding confirmation of suspension.
  • J&K High Court – WP(C) No. 1498/2023: Challenged the suspension order dated 15.05.2023. This petition was later withdrawn on 03.11.2025, but an interim order dated 14.06.2023 had directed consideration of his representation against suspension.
  • WP(C) No. 2871/2023: Challenged the order dated 28.10.2023 instituting Staff Court of Enquiry. On 22.11.2024, this petition was disposed of as infructuous.
  • Representation against enquiry: Rejected by BSF vide letter dated 07.11.2023.
  • WP(C) No. 3128/2023: Challenged:
    • Rejection letter dated 07.11.2023, and
    • Proceedings under Rule 173 of the BSF Rules, including a prayer to stay departmental enquiry until decision in the criminal case.
    An interim stay of departmental proceedings was granted on 04.12.2023.
  • WP(C) No. 1876/2025: Challenged the suspension review/extension order dated 04.07.2025 and sought reinstatement during pendency of the criminal trial.
  • CCP(S) No. 32/2024: Contempt petition arising out of alleged non-compliance with an interim order; later disposed of as infructuous.

4. Issues before the Court

The Court crystallized and addressed, in substance, the following legal issues:

  1. Simultaneous Criminal and Departmental Proceedings: Whether the departmental proceedings under Rule 173 BSF Rules and the criminal prosecution under Section 376 IPC, based on the same factual substratum, can proceed simultaneously, or whether departmental proceedings should be stayed till conclusion of the criminal trial.
  2. Nature of the Alleged Misconduct: Whether the petitioner’s conduct, being rooted in personal relationship and private promise of marriage, falls outside the scope of service misconduct and is purely a matter of private life, with which the employer should not interfere.
  3. Validity of Continued Suspension: Whether the continued suspension, extended by the order dated 04.07.2025, amounts to an arbitrary, punitive, or unconstitutional deprivation of livelihood under Article 21, particularly in light of alleged excessive duration.
  4. Prejudice to Defence: Whether continuation of departmental enquiry would prejudice the petitioner’s defence in the pending criminal trial, justifying a stay of departmental proceedings.

5. Precedents Cited and Their Influence

5.1 State of Rajasthan v. B.K. Meena & Anr., (1996) 6 SCC 417

This judgment is the cornerstone of Indian law on the interplay between departmental and criminal proceedings. The High Court quotes extensively from paragraphs 14 and 15, summarizing the following principles:

  • No legal bar to simultaneous criminal and departmental proceedings.
  • Stay of departmental proceedings is not automatic; it depends on what is “desirable, advisable or appropriate” in the given facts.
  • Stay is ordinarily considered only when:
    • the criminal case is of a grave nature, and
    • it involves complicated questions of fact and law, and
    • continuation of departmental enquiry would likely prejudice the defence of the employee.
  • Courts must weigh all circumstances, emphasizing:
    • the public interest in expeditious completion of departmental proceedings, and
    • the interest of the delinquent in securing early vindication if innocent, or timely consequence if guilty.
  • Stay of disciplinary proceedings “cannot be, and should not be, a matter of course.”

The High Court relies on this framework to underline that gravity of charge alone is insufficient to justify staying departmental proceedings. There must also be complicated factual and legal issues and a real risk of prejudice.

5.2 Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679

The Supreme Court in this case consolidated the law from earlier judgments, including B.K. Meena. The J&K High Court quotes the five-point summary:

  1. Departmental proceedings and criminal proceedings can proceed simultaneously; there is no legal bar.
  2. Where both are based on identical facts, and the criminal charge is of grave nature involving complicated questions of law and fact, it is desirable—but not mandatory—to stay the departmental enquiry.
  3. Whether a charge is “grave” and involves complex issues depends on the nature of the offence, and the evidence and material collected.
  4. Even where such factors exist, the need to avoid undue delay in departmental proceedings is critical.
  5. If the criminal case is unduly delayed, departmental proceedings, even if earlier stayed, can and should be resumed.

The High Court uses this framework to analyze whether the petitioner’s case qualifies as one where departmental proceedings should be postponed. It concludes that though the charge (rape) is grave, the case does not involve complicated factual or legal questions in the relevant sense, and thus does not warrant a stay.

5.3 Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya & Ors., (1997) 2 SCC 699

This decision draws a fundamental distinction between criminal prosecution and departmental enquiry. The High Court quotes paragraph 8, highlighting that:

  • A criminal prosecution is for violation of a duty owed to society; its standard of proof is high: the prosecution must prove the case beyond reasonable doubt, governed by the Indian Evidence Act.
  • A departmental enquiry aims at maintaining discipline and efficiency in public service. It is governed by service rules, with a lower standard of proof (preponderance of probabilities), and the strict rules of the Evidence Act do not apply.
  • The focus in departmental proceedings is on conduct and breach of service obligations, not merely on compliance with criminal law.
  • Each case must be examined on its facts to determine whether continuing departmental proceedings would seriously prejudice the criminal defence.

This precedent supports the High Court’s conclusion that the BSF is both entitled and obligated to proceed with its own disciplinary mechanism, independent of the outcome or pace of the criminal proceedings.

6. Legal Reasoning of the High Court

6.1 Nature of the Allegations: Private Life vs Service Misconduct

The petitioner argued that his interactions with the complainant arose from a private matrimonial arrangement—she had advertised for marriage, he responded, and the subsequent events were purely personal. He contended that:

  • His brother and sister-in-law prevented him from marrying the complainant.
  • The complainant herself was, at one point, willing to release him from the relationship, as allegedly reflected in WhatsApp chats.
  • Therefore, this was at most a private dispute, not a matter for the employer’s intervention.

The Court firmly rejected this characterization. Its reasoning:

  • The complainant is a junior member of the same Force (a BSF ASI), and the petitioner was an Assistant Commandant.
  • The allegations constitute:
    • A serious criminal offence under Section 376 IPC (rape on false promise of marriage), and
    • Misconduct vis-à-vis a junior colleague, involving allegations of rape, threats and blackmail.
  • The departmental enquiry is framed as one into alleged misconduct towards a subordinate within a disciplined force, not merely about private morality.

The Court concludes:

“...If these allegations leveled against the petitioner are proved, the same would amount to offence of rape and it would also amount to misconduct as the person against whom the petitioner is alleged to have committed the offence of rape is also a member of the Force. Therefore, the consequences of the alleged act of the petitioner have contours of criminality as well as the contours of misconduct. Thus, the contention of the petitioner that his alleged act is a personal matter having nothing to do with his service, cannot be accepted.” (para 17)

This is a crucial clarification: in a uniformed, hierarchical organization like the BSF, alleged sexual exploitation of a junior colleague is inherently a service matter, even if couched in the language of romantic or matrimonial promises.

6.2 Simultaneous Departmental and Criminal Proceedings

Applying the principles from B.K. Meena, M. Paul Anthony, and Yousuf Miya, the Court highlighted:

  • There is no general legal bar to simultaneously proceeding with both departmental and criminal cases.
  • A stay of departmental proceedings is justified only where:
    • Charges are of a grave nature (here, admittedly they are), and
    • They involve complicated questions of law and fact, and
    • Continuance of departmental proceedings would prejudice the defence in the criminal trial.

On the facts, the Court held:

  • The substratum of both proceedings is the same complaint, and the charge (rape) is indeed grave (paras 20, 22).
  • However, the factual and legal issues are not complicated:
    • The essential allegation is straightforward: the complainant was induced into sexual intercourse by a false promise of marriage.
    • Determining the truth of this allegation does not, in the Court’s view, involve complex or intricate factual or legal questions.
  • Further, the petitioner cannot claim risk of prejudice when he has already voluntarily put his defence on record in:
    • his writ petitions before the High Court,
    • his representations to BSF authorities, and
    • his bail application before the criminal court.

The Court observes:

“...Defence of the petitioner before the criminal court is not going to be prejudiced in case the departmental proceedings are allowed to go ahead because the petitioner has already disclosed his defence not only in the petitions filed by him before this Court but also in his representations filed by him before the respondents. Even in his bail application filed before the criminal court, the petitioner has disclosed his defence. Therefore, no prejudice would be caused to the petitioner in case both the criminal case as well as departmental proceedings are allowed to proceed simultaneously.” (para 22)

Consequently, the Court refused to stay the departmental enquiry, holding that:

  • The conditions laid down by the Supreme Court for staying such enquiries were not met.
  • Departmental proceedings serve an autonomous function in maintaining the integrity and discipline of the Force.

6.3 Prolonged Suspension and Article 21

The petitioner argued that:

  • His suspension had continued far beyond permissible limits (he invoked the notion that suspension ought not exceed 90 or 180 days).
  • This prolonged suspension, in effect, amounted to a punishment without conclusion of enquiry, violating his right to livelihood and dignity under Article 21 of the Constitution.

The Court did not enter into a detailed doctrinal discussion on permissible suspension periods or the general constitutional limits on prolonged suspension. Instead, it decided the issue on a decisive factual premise:

  • The departmental proceedings were initiated on 28.10.2023.
  • Within about one and a half months, they were stayed by the High Court on 04.12.2023 in WP(C) No. 3128/2023—on the petitioner’s own application.
  • Thus, it was the petitioner himself who caused the proceedings to come to a “grinding halt” (para 24).
  • Having obtained a stay preventing the employer from bringing the departmental enquiry to conclusion, the petitioner cannot:
    • turn around and complain that the departmental process has been delayed, and
    • then use that very delay to challenge the legality of his continued suspension.

The Court applies a fundamental equitable principle: a party cannot take advantage of its own wrong.

“Thus, the petitioner cannot take advantage of his own actions by claiming that the respondents have perpetuated his agony by not completing the departmental proceedings. The ground urged by the petitioner is without any substance and, therefore, deserves to be rejected.” (para 24)

On this reasoning, the Court upheld the impugned suspension extension order dated 04.07.2025 and declined to direct reinstatement.

6.4 Contempt Petition and Doctrine of Merger

The contempt petition, CCP(S) No. 32/2024, was premised on alleged non-compliance with earlier interim orders in the writ proceedings. Once the main writ petitions were finally decided, the Court noted:

  • The interim order had merged into the final judgment.
  • With the underlying substantive issue resolved, the foundation of the contempt petition ceased to exist.
  • Consequently, the contempt petition was held to be infructuous and disposed of without further substantive orders.

7. Impact and Implications

7.1 For Uniformed and Disciplined Forces (BSF and Similar Organizations)

This judgment reinforces and localizes, within the J&K High Court’s territorial jurisdiction, several important principles:

  • Sexual Misconduct as Service Misconduct: Allegations of sexual exploitation of a subordinate on false promise of marriage—especially where both parties are part of the same disciplined force—are not “private” in the service law sense. They can and should be treated as service misconduct, irrespective of the outcome of criminal proceedings.
  • Autonomy of Departmental Discipline: Command and discipline in uniformed services justify prompt departmental enquiries. The organization is not required to await the uncertain, often delayed, outcome of criminal trials, particularly where:
    • the factual matrix is relatively straightforward, and
    • there is no demonstrable prejudice to the defence in the criminal case.
  • Protection of Junior Personnel: The decision implicitly supports institutional mechanisms to address sexual misconduct and exploitation of junior personnel by officers, signalling judicial support for administrative action in such cases.

7.2 For the Law on Simultaneous Proceedings

While the judgment does not create a new legal doctrine beyond Supreme Court jurisprudence, it:

  • Provides a clear, fact-based application of the B.K. Meena and M. Paul Anthony principles to sexual misconduct allegations.
  • Clarifies that “complicated questions of law and fact” is a significant threshold—not every serious or sensitive charge (such as rape) automatically satisfies it.
  • Emphasizes that:
    • Disclosing one’s defence across multiple civil/service fora can diminish any argument of prejudice in the criminal trial.
    • In such circumstances, simultaneous proceedings are particularly unobjectionable.

7.3 For Suspension Jurisprudence

Though the Court did not deeply explore Article 21-based limits on prolonged suspension (which have been addressed by the Supreme Court in other cases), its factual holding is practically significant:

  • Where the employee himself is responsible for delaying disciplinary proceedings—e.g., by obtaining judicial stay—he cannot use that delay to argue that suspension has become unduly prolonged or punitive.
  • Departments that periodically review and extend suspension orders in accordance with rules are more likely to be sustained, particularly where the underlying charge is serious and linked to internal discipline.

For future litigants, this case serves as a caution that:

  • Seeking a stay on departmental enquiry may backfire if later used to challenge the length of suspension.
  • Courts are likely to look closely at who caused the delay before granting relief on the ground of prolonged suspension.

7.4 For Sexual Offence Litigation Involving “False Promise of Marriage”

Though the High Court did not adjudicate on the merits of the criminal charge under Section 376 IPC, its treatment of the allegations has implications:

  • It accepts, for the limited purpose of departmental proceedings, that sexual relations induced by a false promise of marriage may, if proved, amount to rape.
  • At the same time, it underlines that the question in departmental proceedings is not strictly whether the criminal offence is made out beyond reasonable doubt, but whether the conduct amounts to misconduct under service rules.
  • This duality—same facts having both criminal and disciplinary consequences—illustrates how courts separate the functions of criminal law and service law.

8. Complex Concepts Simplified

8.1 Departmental Proceedings vs Criminal Trial

Criminal Trial:

  • Conducted in a criminal court (here, the Additional Sessions Judge, Dwarka).
  • Aims to determine whether an offence defined in law (like Section 376 IPC) has been committed.
  • Standard of proof is “beyond reasonable doubt”.
  • Governed by the Code of Criminal Procedure and the Indian Evidence Act.
  • Conviction can lead to imprisonment, fines, and a criminal record.

Departmental / Disciplinary Proceedings:

  • Conducted by the employer (here, BSF) under service rules (BSF Rules, 1969).
  • Aim is to determine whether the employee committed misconduct breaching service discipline.
  • Standard of proof is lower: typically preponderance of probabilities.
  • Not strictly bound by the technical rules of evidence.
  • Outcomes include reprimand, reduction in rank, removal, or dismissal from service.

Thus, an employee may:

  • Be acquitted in criminal court but still face disciplinary action, or
  • Be punished departmentally even if criminal trial is pending or delayed.

8.2 “Simultaneous Proceedings” and When They May Be Stayed

“Simultaneous proceedings” means that:

  • The criminal case and the departmental enquiry move forward at the same time, each in its own forum.

The Supreme Court’s test, as applied by the High Court, is:

  • General Rule: Both proceedings can continue together; there is no automatic bar.
  • Exception (when stay may be appropriate):
    • The criminal charge is grave, and
    • It involves complicated questions of law and fact, and
    • Continuation of departmental proceedings is likely to prejudice the defence in the criminal trial.

In this case, the Court held that:

  • Although the charge is grave (rape), the issues are not complicated in the legal sense.
  • No real prejudice was shown because the defence was already on record in several proceedings.

8.3 Suspension in Service Law

Suspension is an interim administrative measure where the employee:

  • Is not allowed to perform official duties, and
  • Receives a reduced subsistence allowance in place of full salary.

Key points:

  • Suspension is generally regarded as not a punishment in itself; it is a step pending enquiry or trial.
  • Rules often require periodic review of suspension (as was done here) to avoid arbitrariness.
  • Courts scrutinize unduly prolonged suspension, particularly if:
    • the employer is not diligently pursuing the enquiry, or
    • the delay is unjustified and oppressive.
  • However, where the employee himself causes the delay, courts are much less inclined to grant relief on this ground.

8.4 “Merger” in the Context of the Contempt Petition

The doctrine of merger here means:

  • An interim order (e.g., an interim stay) is only temporary.
  • When the final judgment is delivered, that interim order loses independent existence and is considered to be merged into the final judgment.
  • After final decision, it usually makes little sense to continue a contempt proceeding for disobedience of a purely interim arrangement; the Court looks instead at the final judgment for rights and obligations.

Thus, once the main writ petitions were dismissed, the interim orders supporting the contempt petition effectively ceased to be separately enforceable, and the contempt petition was disposed of as infructuous.

9. Conclusion

The decision in Akhand Prakash Shahi v. Union of India & Anr. consolidates and applies well-settled Supreme Court principles in a sensitive context—sexual misconduct allegations within a uniformed force, involving allegations of rape on a false promise of marriage.

The key takeaways are:

  • Simultaneous Proceedings Reaffirmed: Criminal and departmental proceedings can proceed in parallel. A stay of departmental enquiry is an exception, not the rule, and is confined to cases where both gravity and complexity, coupled with demonstrable prejudice, are present.
  • Sexual Exploitation of a Subordinate is Service Misconduct: Conduct labelled as “private” because it arises from a romantic or matrimonial context cannot shield a superior officer from departmental scrutiny where the alleged victim is a junior colleague within the same disciplined force.
  • No Prejudice Where Defence Is Already Disclosed: An employee who has already laid out his defence in multiple civil and administrative fora cannot plausibly claim that continuing departmental proceedings will compromise his defence in the criminal case.
  • Prolonged Suspension: Employee’s Own Role Matters: When suspension is prolonged primarily because the employee has procured a stay on departmental proceedings, he cannot thereafter rely on the duration of suspension as a ground to invalidate it. The principle that one cannot take advantage of one’s own wrong is firmly applied.
  • Institutional Discipline Prioritized: In the context of a paramilitary force, the Court gives clear impetus to prompt and effective internal disciplinary action in cases involving alleged sexual misconduct and abuse of position towards junior members.

Marked as both “speaking” and “reportable”, this judgment offers a clear, reasoned reaffirmation of doctrinal standards on simultaneous criminal and departmental proceedings, while tailoring their application to the realities of sexual misconduct within disciplined forces. Its emphasis on the non-private character of such misconduct and its careful handling of the suspension issue are likely to be influential in future service law litigation, especially in the security and uniformed services sector.

Case Details

Year: 2025
Court: Jammu and Kashmir High Court

Judge(s)

HON'BLE MR. JUSTICE SANJAY DHAR

Advocates

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