Atal Bihari vs Union of India and Others

Gita Mittal, J.—By way of the present writ petition, the petitioner assails the order dated 9th April, 2013 whereby the mercy petition made by the petitioner has been rejected. The petitioner also assails the prior order dated 18th July, 2006 passed by the Summary Security Force Court (''SSFC'' hereafter) whereby the petitioner was found guilty of commission of offence punishable u/s 46 of the Border Security Force Act, 1968 and the sentence awarding dismissal from service. The petitioner was recruited as Constable in the Border Security Force on the 24th of March, 1993. In the year 2006, he was posted with the 89th Battalion of the Border Security Force at West Bengal.

The case against the petitioner commenced on a complaint made by one Shri Hari Mohan Dass about an incident involving a woman, Smt. Parvati Das. In order to obviate any dispute we may usefully set down the statement made by the Smt. Parvati Das who appeared as the first witness in support of the prosecution during the petitioner''s trial. The statement reads as follows:-

PW-1-First witness for prosecution

Mrs. Parvati Das, age approx 40 years (Hindu) resident of Vill-Makarhat Daspara being duly affirmed is examined by the court.

I am the resident of Makarhat Daspara Village. I know and recognize the accused present before the court.

At about 1900 hrs on 10.07.2006, I went to Makarhat village to procure some ration. While going back to my house, one person suddenly put his palm over my mouth from behind. While trying to release myself I saw his face and came to know that he was a BSF person, the one who is sitting before the court as accused. He then dragged me down in a jute filed, which is near a pond. Thereafter, he forcibly took of my cloths and made me naked. He was in civil dress without his vest. I then started kicking him but he said I am not going to let you go even if you kick me. I also started shouting and crying. Hearing my cry, the villagers rushed towards that place where I was brought by the BSF Jawan. As soon as the villagers approached towards us, he ran away from the place. I also got up and joined the villagers.

Cross examined by Accused

My son was ill. I worked in jute filed whole day. While I was returning to my house after procuring ration and medicine for my son, accused suddenly put his palm over my mouth from behind and dragged me to nearby jute filed.

It was about 07:30 PM and due to cloudy weather and dense jute filed there was no broad daylight.

The accused dragged me down to the nearby jute filed and forcibly took off my cloth and made me naked. When I was trying to get myself free, the accused said that he will not allow me to leave the place at any circumstances.

The accused was trying to outrage my modesty, I started shouting and crying. Hearing my cry, villagers gathered and approached towards us. Immediately I got up after wrapping my saree on my person.

At that time I was laying down in muddy field and my clothes got wet and muddy. As and when the villagers reached at the spot, I immediately wrapped the wet and muddy cloth on myself, since I could not wear it properly.

The evidence of Shri Hari Mohan Dass was recorded as the second witness who has corroborated the statement of PW-1. This witness has deposed that while answering the nature call at about 18:45 hours on the 10th of July, 2006 in village Daspara, he had heard the cries and shouts of a woman from another nearby jute field. He had informed his son about the cries who then went to assemble the villagers to check the area. In the meantime, he proceeded towards the place from where the cries were emanating and while going towards the jute field, he saw two persons engaged in a scuffle but the witness could not recognize them. The witness shouted aloud to other villagers whereupon one of the persons who he recognized as a BSF Jawan started running away. The other person who was a lady ran way from another side towards the village. Other villagers who had assembled there, caught hold of the fleeing BSF Jawan who was then taken to the house of one villager. The witness identified the petitioner who was present in court as the person who was caught hold by the villagers. The petitioner was handed over to the BSF authority upon their arrival.

In his defence, the petitioner does not dispute that an incident took place on the 10th of July, 2006 but has attributed violence against him by 10-15 persons. He does not accept the incident as narrated by the prosecution witness.

Be that as it may, upon receipt of the complaint, an order dated 11th July, 2006 was passed by the Commandant appointing an officer to prepare the Record of Evidence against the petitioner for commission of the following offences punishable u/s 48 of the BSF Act.

OFFICE OF THE COMMANDANT: 89 Bn. BSF GOVINDPUR, RAIGANJ WEST BENGAL

Under the provision of BSF Rule 45, IRLA No. 19045948 Shri G.N. Padukone, 21 C of this unit is hereby detailed to prepare record of evidence against No. 93254092 CT Attal Bihar "A" Coy this Unit committed an offence under BSF Act Section 46 "COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, USING CRIMINAL FORCE TO A WOMAN WITH INTENTION TO OUTRAGE HER MODESTY PUNISHABLE U/S-354 IPC

There is no dispute with regard to the fact that the Record of Evidence was prepared in the presence of the petitioner.

On consideration of this evidence, by an order passed on 13th July, 2006, Commandant directed that the petitioner would be tried by SSFC on the 18th of July, 2006 for commission of the above offences. The copy of the record of proceedings as well as charge sheet was duly given to the petitioner. He was also directed to nominate an officer as friend in the trial.

Pursuant to the said order, the petitioner was tried by the SSFC in which the above statement of the complainant and Shri Mohan Dass was recorded. The original record of the proceedings have been produced by the respondent before us which show that the petitioner was given due opportunity to cross-examine the witness. All statutory compliances have been effected.

The SSFC found the petitioner guilty of commission of offences which he was charged with and he was sentenced to dismissal from service.

The petitioner''s statutory petition was duly considered by the respondents and rejected by an order dated 7th November, 2006. The petitioner had no statutory right to file further petition however his mercy petition dated 27th February, 2013 was duly considered and rejected by an order passed on 9th April, 2013.

The scope of interference by this court into the proceedings arising under the SSFC conducted under the BSF Act is narrow. In the instant case, the finding of guilt and the imposition of punishment is supported by the evidence which was recorded by the SSFC. No violation of any statutory provisions or principles of natural justice has been made out on behalf of the petitioner. Learned counsel for the petitioner has urged that the SSFC had no jurisdiction to conduct the trial of the petitioner in view of Section 47 of the BSF Act. A reading of the said statute would show that the SSFC is prohibited only from conducting trial of a person who commits an offence of murder or of culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act. There is no prohibition for the SSFC to try a person subjected to the BSF Act for other civil offences. Section 46 of the enactment confers jurisdiction on the SSFC to hold the trial of the petitioner for the offence with which he was charged in the instant case.

For all the foregoing reasons, we find no merit in this writ petition and application which are hereby dismissed.