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G.P Singh And Others v. Shanti Ranjan Sarkar .
Factual and Procedural Background
The appeal was filed by the Commandant, 71 Battalion, Border Security Force (BSF), Krishnagar, and others including the Union of India against a judgment dated August 4, 1977 of a single Judge that made absolute a Rule Nisi obtained by the respondent, Shanti Ranjan Sarkar, under Article 226 of the Constitution.
The respondent was a constable of 71 Battalion, BSF, posted at Modhugari Police Camp, Karimpur, District Nadia. He was charged with abetment of the offence of exacting money from one Md. Mohiuddin Mondal without proper authority and was tried by a Summary Security Force Court. The Summary Security Force Court, by an order dated September 10, 1975, found him guilty and sentenced him to rigorous imprisonment in a civil jail for three months and dismissed him from service. The Inspector-General, BSF, West Bengal, approved the conviction and sentence by an order dated September 29, 1975.
While serving the sentence in civil jail, the respondent submitted a petition to the Inspector-General, BSF, New Delhi through the Superintendent of Krishnagar Jail; the petition was rejected by the Law Officer, Grade I on the ground that it should have been submitted to the Commandant of the Unit in which the trial was held. The respondent filed a writ petition in this Court and obtained a Rule Nisi, which was made absolute by the learned single Judge on the basis that (inter alia) the order of imprisonment in civil jail for three months could not be combined with dismissal from service under the relevant statutory scheme. The present appeal challenges that judgment and order.
Legal Issues Presented
- Whether a Summary Security Force Court, limited by Clause (b) of sub-section (5) of Section 74 of the Border Security Force Act, 1968 to imposing imprisonment for a term not exceeding three months, has jurisdiction to impose in addition the punishment of dismissal from service under Clause (c) of Section 48(1) when read with Section 50 of the Act.
- Whether a petition submitted by the respondent to the Inspector-General of BSF through the Superintendent of the civil jail could be rejected solely because it was not directly submitted to the Commandant of the Unit in which the trial was held (Rule 169(1)(b) of the Border Security Force Rules, 1969).
Arguments of the Parties
Respondent's Arguments
- It was contended (on behalf of the respondent) that, in view of Clause (b) of sub-section (5) of Section 74 of the Act, the Summary Security Force Court was limited to imposing only one punishment — imprisonment for a period not exceeding three months — and therefore had no jurisdiction to impose the additional punishment of dismissal from service.
- It was further contended that the petition submitted by the respondent to the Inspector-General of BSF through the Superintendent of Krishnagar Jail should not have been rejected merely because it was not submitted to the Commandant of the Unit in which the trial was held, given that the respondent was serving his sentence in civil jail and the Superintendent presumably knew of the relevant rule (R.169(1)(b)).
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court began by identifying and quoting the relevant statutory provisions in the Border Security Force Act, 1968:
- Section 43 (abetment provision) — sets out liability for abetment of offences specified in Sections 14 to 41.
- Section 31 — prescribes punishment for the offence of exaction of money (imprisonment which may extend to 10 years or less as provided in the Act).
- Clause (b) of sub-section (5) of Section 74 — limits the maximum sentence a Summary Security Force Court (when presided over by an officer not equivalent to Superintendent of Police) can impose to imprisonment for three months.
- Section 48(1) — lists the scale of punishments that may be inflicted by Security Force Courts, including (c) dismissal from service and (d) imprisonment for a term not exceeding three months in force custody, along with other listed punishments; sub-section (2) states that each punishment is inferior in degree to every punishment preceding it in that scale.
- Section 50 — provides that a sentence of a Security Force Court may award, in addition to or without any one other punishment, the punishment specified in Clause (c) of Section 48(1) (dismissal from service) and any one or more of the punishments specified in Clauses (e) to (l) of Section 48(1).
Applying these provisions to the facts, the Court noted that although the Summary Security Force Court's authority to impose imprisonment was limited to three months (by Section 74(5)(b)), Section 50 specifically permits a Security Force Court to award dismissal from service (Section 48(1)(c)) in addition to other punishments. The Court expressly rejected the learned single Judge's interpretation that dismissal (Clause (c)) and short-term imprisonment in force custody (Clause (d)) could not be combined. The opinion reasons that Section 50 is clear in authorising a combination of dismissal with other punishments and that the statutory scheme contemplates such combinations.
The Court also articulated a purposive policy consideration, drawn from the statutory language itself: combining dismissal with imprisonment is consistent with the object of preserving discipline and integrity within the Force — it would be undesirable that a person convicted of offences such as theft or extortion and sentenced to imprisonment be retained in BSF service.
On the procedural point about the rejected petition, the Court observed that Rule 169(1)(b) provides for submission of such petitions to the Commandant of the Unit in which the trial was held, but held that the petition submitted to the Inspector-General through the Superintendent of the civil jail should not have been rejected in limine merely for not being addressed to the Commandant. The Superintendent, being aware of the rule, should have forwarded the petition to the Commandant. Consequently, the Court directed that the petition be considered by the proper authority in accordance with law within six weeks and that the respondent be communicated with the decision within a week thereafter.
Finally, the Court emphasized that its conclusions on these procedural and interpretative points did not amount to any expression of opinion on the merits of the Summary Security Force Court's finding and sentence.
Holding and Implications
Holding:
APPEAL ALLOWED; the impugned judgment and order of the learned single Judge dated August 4, 1977 are set aside.
Implications and direct effects:
- The Court held that a Security Force Court (including a Summary Security Force Court limited to imposing imprisonment of up to three months) may impose dismissal from service in addition to imprisonment, by virtue of Section 50 read with Section 48(1) of the Border Security Force Act, 1968. The learned Judge's contrary view was not sustained.
- The respondent's petition (previously rejected as improperly submitted) is to be considered by the proper authority in accordance with law within six weeks from the date of the order, and the respondent is to be informed of the decision within a further week.
- There will be no order as to costs.
- The Court expressly stated that it has not expressed any opinion on the merits of the Summary Security Force Court's finding and sentence; therefore, no broader judicial determination on the factual merits was made in this appellate decision.
Dutt, J.:— This appeal has been preferred by the Commandant, 71 Battalion, Border Security Force, Krishnagar and others including the Union of India against the judgment and order dated Aug. 4, 1977 of a learned single Judge of this Court, whereby the learned Judge made absolute the Rule Nisi issued on the application of the respondent. Shanti Ranjan Sarkar, under Art. 226 of the Constitution.
2. The respondent was a constable of 71 battalion of the Border Security Force. At the material time, he was posted at Modhugari Police Camp, P.S Karimpur, District Nadia. He was charged with abetment of the offence of exacting money from one Md. Mohiuddin Mondal without proper authority. He was directed to be tried by the Summary Security Force Court. In the trial, he was found guilty of the charge and, by an order dt. Sept. 10, 1975 of the Summary Security Force Court, he was sentenced to undergo rigorous imprisonment in Civil Jail for a period of three months. He was also dismissed from service. The conviction and sentence of the Summary Security Force Court was approved by the Inspector-General of Border Security force, West Bengal by his order dt. Sept. 29, 1975. The respondent, being aggrieved by the finding and sentence of the Summary Security Force Court, while serving out the sentence in the Civil Jail, submitted a petition to the Inspector-General of Border Security Force, New Delhi, through the Superintendent of Krishnagar Jail against such finding and sentence. The petition was rejected by the Law Officer, Grade I on the ground that it should have been submitted to the Commandant of the Unit in which the trial was held. Being aggrieved by the finding and sentence of the Summary Security Force Court, the respondent filed a writ petition in this Court and obtained a Rule Nisi out of which this present appeal arises. At the hearing of the Rule Nisi, it was contended on behalf of the respondent, inter alia, that in view of S. 50 of the Border Security Force Act, 1968, hereinafter referred to as the Act the order for imprisonment in civil jail for a period of three months could not be combined with dismissal from service. The said contention was upheld by the learned Judge and, as stated already, the learned Judge quashed the impugned order of conviction and sentence and the dismissal of the respondent from service and made the Rule Nisi absolute. Hence this appeal.
3. The respondent was charged with abetment of the offence of exacting money from the said Md. Mohiuddin Mondal without proper authority. S. 43 of the Act provides as follows:
“Any person subject to this Act who abets the commission of any of the offences specified in Ss. 14 to 41 (both inclusive) shall, on conviction by ecurity Force Court, if the Act abetted is committed in consequence of the abetment and no express provision is made by this Act for the punishment of such abetment, be liable to suffer the punishment provided for that offence or such less punishment as is in this Act mentioned.”
4. S. 31 of the Act, inter alia, provides for a punishment for the offence of exaction of money from any person without authority. The punishment prescribed is imprisonment for a term which may extend to 10 years or such less punishment as mentioned in the Act. As the Officer who held the Summary Security Force Court for the trial of the respondent was not holding the post of Superintendent of Police or a post equivalent thereto, the limit of the sentence that could be imposed by him was imprisonment for three months as provided in Cl. (b) of sub-sec. (5) of S. 74 of the Act. Indeed, in the instant case, the respondent was sentenced to rigorous imprisonment for three months in a civil jail. The question that arises for our consideration is whether the Summary Security Force Court can in addition to the punishment of imprisonment for three months impose the punishment of dismissal from service.
5. It is vehemently urged by Mr. Tarak Nath Banerjee, learned Counsel appearing on behalf of the respondent that as Cl. (b) of sub-sec. (5) of S. 74 of the Act provides for imposition of only one punishment, that is, imprisonment the period of which is limited to three months, the Summary Security Force Court had no jurisdiction to impose on the respondent the further punishment of dismissal from service.
6. In this connection, we may refer to two other provisions of the Act. S. 48 of the Act provides as follows:
“48.(1) Punishment may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale, following that is to say,
(a) death;
(b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in force custody;
(c) dismissal from the service;
(d) imprisonment for a term not exceeding three months in force custody;
(e) reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under officer;
(f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;
(g) forfeiture of service for the purpose of increased pay pension or any other prescribed purpose;
(h) fine, in respect of civil offences;
(i) severe reprimand or reprimand except in the case of persons below the rank of an under officer;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty;
(k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal;
(1) Stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good.
(2) Each of the punishments specified in sub-sec. (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.
7. S. 50 of the Act provides for a combination of punishments. S. 50 runs as follows:
“50. A sentence of a Security Force Court may award in addition to, or without any one other punishment, the punishment specified in Cl. (c) of sub-sec. (1) of S. 48, and any one or more of the punishments specified in Cls. (e) to (1) (both inclusive) of that sub-section.”
8. Security Force Court may award the punishment of dismissal under Cl. (c) and any one or more of the punishments specified in Cls. (e) to (1) of S. 48(1). Therefore, the Security Force Court can combine any punishment with the punishment of dismissal and any other lesser punishment. We are unable to subscribe to the view of the learned Judge that an order for imprisonment in a civil jail for a period of three months cannot be combined with dismissal from service under Cl. (c) of S. 48(1) of the Act. In other words, according to the learned Judge, Cls. (c) and (d) of S. 48(1) of the Act which are respectively dismissal from service and imprisonment for a term not exceeding three months in Force custody cannot be combined together by a sentence of the Security Force Court.
9. S. 50, in our opinion, is very clear. It has been specifically mentioned in S. 50 that any punishment that may be awarded by the Security Force Court can be combined with the punishment of dismissal. The object for such a provision is not far to seek. It is not desirable that a person who is guilty of an offence of say, theft, extortion etc., and convicted and sentenced to rigorous imprisonment for a term should be kept in the service of the Border Security Force where one has to maintain discipline and integrity of character. The respondent was found guilty of the charge of abetment of the offence of exaction of money. He has been convicted and sentenced to rigorous imprisonment for three months by the Summary Security Force Court. We do not find any unreasonableness or impropriety in the order of the Summary Security Force Court imposing on the respondent the additional punishment of dismissal from service as provided in S. 50 of the Act so long as the finding of guilt of the respondent stands. We are, therefore, unable to sustain the judgment and order of the learned Judge quashing the conviction and sentence of the respondent.
10. Before we part with this appeal, we may dispose of a short point that has been raised on behalf of the respondent. It is submitted that the petition of the respondent which was submitted to the Inspector-General of Border Security Force through the Superintendent of Krishnagar Jail should not have been rejected on the ground that it was not submitted to the Commandant of the Unit in which the trial was held. Indeed, Cl. (b) of R. 169(1) of the Border Security Force Rules, 1969 provides for the submission of such a petition to the Commandant of the Unit in which the trial was held. We do not think that as the petition was not submitted to the Commandant of the Unit, it should be rejected in limine. The respondent was serving out the sentence of imprisonment in the civil jail.
11. He submitted a petition to the Superintendent of civil jail who, it can be presumed, must have been aware of R. 169(b). The Superintendent of the Jail should have submitted the petition to the Commandant of the Unit for being dealt with by the authority concerned. Accordingly, we direct that the said petition be considered by the proper authority in accordance with law. Such consideration shall be made within a period of six weeks from date and the respondent shall be communicated with the decision of the authority within a week thereafter.
12. Subject to the above direction for consideration of the petition of the respondent, we set aside the impugned judgment and order of the learned Judge. The Rule is disposed of as above.
13. The appeal is allowed. There will, however, be no order for costs.
14. We make it clear that we have not expressed any opinion on the merits of the finding and sentence of the Summary Security Force Court.
15. Chaudhuri, J.:— I agree.
16. Appeal allowed.
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