Constable Bhisham Singh v. Border Security Force .

Anil Dev Singh, J.:— This is a writ petition whereby the petitioner challenges the order of punishment of dismissal form service imposed on him by the respondent. The facts giving, rise to the petition are as follows:

The petitioner was a constable in the Border Security Force. The first respondent, Border Security Force, has been arrayed through its Director-General, and the second respondent, Union of India, has been impleaded through the Secretary, Ministry of Home Affairs. The petitioner joined the Border Security Force on November 5, 1992. On the date of the incident, viz., August 7, 200, he was discharging his duties of a constable at the BOP Tent post. H.C Mangal Dev Barman took the roll call of the members of the force available in the BOP. After the roll call, HC Mangal Dev Barman asked them to spell out their grievances, if any. The petitioner who had also joined the roll call remonstrated by saying persons returning from last OP duty should not be deputed for the night ambush duty. HC Mangal Dev Barman clarified that due to shortage of manpower every jawan in the BOP is required to perform ambush duty. HC Pratap Singh, who was also present, interjected and supported the views of HC Mangal Dev Barman. The intervention of HC Pratap Singh was objected to by the petitioner. In response, HC Pratap Singh stated that whatever he had said was true. Upon this the petitioner got irritated and took umbrage to the remarks of HC Pratap Singh. He threatened to kill him.HC Pratap Singh responded by saying as to why the petitioner would kill him when all he was stating was that duty had to be performed by all available persons in the BOP. The petitioner is alleged to have lost his temper and caught hold of HC Pratap Singh and pushed him out of the roll call parade. He is also stated to have used abusive and filthy language. The brawl, however, was stopped at the intervention of others who were present at the roll call parade. The matter was reported by HC Pratap Singh to Post Commander SI Bhagwan Singh who advised him to file a written complaint. Thereafter, HC Pratap Singh went to the barrack to write a complaint. He was followed by the petitioner who started inflicting blows on him. This resulted in following injuries on the persons of HC Pratap Singh:—

1. Injuries on the right eye accompanied by swelling due to haemotoma,

2. Superficial cut at lower eyelid, and

3. Clot at nostrils accompanied by swelling around the nose.

2. On being beaten by the petitioner, HC Pratap Singh called out for help, whereupon some persons came inside the barrack. On seeing them, the petitioner left for ambush duty. The petitioner was recalled from ambush duty, and an evidence report under Rule 43 of the BSF Rules was prepared. The petitioner was charge sheeted on August 8, 2000. The charges framed against him read as follows:

“The accused No. 92477299 Const. Bhisam Singh of ‘E’ Coy, 145 Bn BSF is charged with:

FIRST CHARGE

BSF ACT 1968 SEC-20(A)

ASSAULTING A SUPERIOR OFFICER

in that he, at BOP Tent Post on 7.8.2000 at about 1745 hrs, assaulted No. 84005191 HC Pratap Singh of the same post causing injury on his face and head.

SECOND CHARGE

BSF ACT 1968 SEC 026 INTOXICATION

in that he, at BOP Tent Post on 7.8.2000 at about 1745 hrs, was found in a state of intoxication.”

3. The charges were heard by the Commandant under Rule 45 of the BSF Rules. Thereafter, the commandant ordered record of evidence to be prepared under Rule 48 of the BSF Rules. The record of evidence was prepared from August 12, 2000 to August 18, 2000. Since a prima facie offence was disclosed, the Officiating Commandant, 145 BN, BSF, placed the petitioner under close arrest and convened Summary Security Force Court for trial of the petitioner. On examination of the evidence recorded at the trial, the Summary Security Force Court found the petitioner guilty of both the charges under sections 20(a) and 26 of the BSF Act, 1968. Accordingly, the summary Security Force Court convicted the petitioner and awarded him punishment of dismissal from service w.e.f September 25, 2000. The proceedings of Summary Security Force Court were transmitted to the DIG, BSF, under rule 160 of the bsf rules. The DIG, on consideration of the matter, set aside the finding of the Summary Security Force Court with regard to the Second charge without disturbing the finding on the first charge. The DIG also approved the sentence passed by the Summary Security Force Court.

4. The petitioner being aggrieved by the order passed by the Summary Security Force Court and the order of the DIG filed a writ petition being CWP No. 7550/2000. The writ petition, however, was withdrawn by the petitioner on December 14, 2000 as the petitioner had not exhausted the statutory remedy available to him under section 117 of the bsf act. On the next day, viz., December 15, 2000, the petitioner filed a statutory representation under section 117 of the bsf act. This representation was rejected by the DG, BSF, on May 29, 2001. On rejection of the statutory, representation, the petitioner has preferred the instant writ petition. We have heard the learned counsel for the parties as they have consented to the disposal of the writ petition at the show cause stage.

5. According to the learned counsel for the petitioner, the Summary Security Force Court was not competent to try the petitioner for an offence under section 20(a) of the bsf act. The learned counsel, in this regard, relied upon Rule 47 of the BSF Rules. Rule 47 of the BSF Rules lays down as follows:

“47. Charges not to be dealt with summarily: A charge for an offence under section 14 or section 15 or clauses (a) & (b) of section 16, or section 17 or clause (a) of section 18 or clause (a) of section 20 or clause (a) of section 24 or section 46(other than that for simple hurt or theft) or a charge for abetment of or an attempt to commit any of these offences shall not be dealt with summarily.”

6. According to the aforesaid Rule, a person charged with an offence under Section 20(a) of the Act cannot be dealt with summarily. The aforesaid rule does not put an embargo on the trial by a Summary Security Force Court of a person charged with an offence under section 20(a) of the bsf act. The petitioner admittedly has not been dealt with summarily under Rule 47 of the BSF Rules, but has been tried by a summary Security Force Court. As per section 48 of the bsf act, a Security Force Court is entitled to inflict punishment of dismissal from service in respect of offences committed by persons subject to the BSF Act. Under the Act, there are throe kinds of Security Force Courts, namely, (1) General Security Force Court, (2) petty Security Force Court, and (3) Summary Security Force Court. Therefore, not only the petitioner could be tried by a Summary Security Force Court, but it could also order his dismissal from service on his conviction. Section 74 of the Act provides that subject to the provisions of sub-section (2) thereof, a Summary Security Force Court can try any offence punishable under the Act. A person charged with an offence under Section 20(a) of the Act, therefore, can be tried by a Summary Security Force Court. It is not a case which falls under sub-section (2) of section 74 of the Act, nor it is so claimed by the petitioner. We, therefore, do not find any infirmity in the holding of a Summary Security Force Court to try the petitioner for an offence under Section 20(a) of the Act.

7. It was then contended by the learned counsel for the petitioner that the punishment imposed on the petitioner is not commensurate with the gravity of the offence. We do not find any force in the submission. To insult a senior officer and to administer beating to him is a very serious charge. Basically, it is for the Security Force Court to consider as to what punishment should be imposed on a person subject to the Act who is charged with an offence. Ordinarily, a writ court does not interfere with the punishment imposed by the Security Force Court on the person who has been convicted of an offence under the Act unless the punishment is highly excessive and is not commensurate with interfere with the sentence imposed by the Summary Security Force Court.

8. Finally, the learned counsel for the petitioner submitted that the sentence passed by the Summary Security Force Court is violative of Article 20(2) of the Constitution. We fail to see how Article 20(2) of the Constitution is infringed in the instant case. It is not the case of the petitioner that even on the earlier occasion he was tried by any one of the Security Force Courts and punished for the same offence for which he has been now and punished by Summary Security Force Court. We may notice that besides the aforesaid incident, the counter-affidavit also records the following two incidents for which court of enquiry was ordered against the petitioner.

(1) One SI Ram Singh, Post Commander of BOP Kinokhal, was assaulted by the petitioner on May 31, 2000 and June 1, 2000.

(2) The petitioner misbehaved with Sharifuddn Sikdir, a student of Kinokhal School, and asked him to provide a girl to him to to satiate his sexual desire.

9. In the circumstances, we do not find any ground to interfere with impugned orders passed by the Summary Security Force Court, the DIG, BSF, and the Director General, BSF. Accordingly, the writ petition fails and is hereby dismissed.

10. Petition dismissed.