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Judgment
Jawahar Lal Gupta, J.—The petitioner was served with a charge sheet on May 11, 1992. He was tried by a Summary Security Force Court on May 12, 1992 and dismissed from service. The petitioner submitted an appeal dated May 28, 1992 which ws rejected vie orer dated February 25, 1993. The petitioner complains that he has not had a fair trial. Is it so?
The petitioner was working as a Driver in the Border Security Force since January 1, 1975. He was in the rank of Naik. Presumably, due to ignorance, the petitioner could not give detailed instructions to the counsel. To add to it, the respondents had not filed even a written statement till February 17, 1995. Accordingly, the respondents were directed to produce the file of the case. It has been produced before me today.
A perusal of the file shows that;-
(i) On April 6, 1992, the Commandant 33 Battalion, B.S.F. passed an order charging the petitioner with the offence of "making away 20 ltrs of diesel and jerricane, the property of Government and using threatening language to his superior officer". He recorded evidence of various witnesses. From that day onwards, the petitioner was placed under "open arrest". This fact is obvious from the statement appearing at page 36 of the file.
(ii) On May 11, 1992, the petitioner was given a charge sheet and informed that he would be tried on May 12, 1992 at 9.00 hours at Bhikhiwind, Amritsar. When the proceedings commenced on May 12, 1992, the petitioner pleaded not guilty. Thereupon, the statements of 7 witnesses were recorded. Then, the petitioner was asked if he wanted to call any witnesses in his defence. He answered in the affirmative and desired that constables Gursewak Singh and Mohammad Iqbal be summoned. The petitioner''s statement in defence was recorded. Thereafter, the statement of Constable Gursewak Singh was recorded. In continuation with this statement, it has been written that "the accused declined to call second defence witness i.e. Ct. Mohammad Iqbal". This statement is not signed by the petitioner. It does not appear to have been written in the same ink as the rest of the proceedings. It appears at running page 30 (Internal Page 24) of the file.
After these proceedings, the Commandant holding the trial, ordered the petitioner''s dismissal from service.
Mr. D.D. Sharma states that the record of evidence was furnished to the petitioner alongwith the charge sheet on May 11, 1992. A copy of the order informing the petitioner regarding trial by a Summary Security Force Court is at Annexure P-3 with the writ petition.
Mr. M.L. Merchea, learned counsel for the petitioner has contended that the action of the respondents was not just and fair. It was arbitrary and violative of the principles of natural justice. He also submits that the provisions of Rule 63 in so far as it requires a notice of trial to be given to the accused for" not less than 24 hours" has not been complied with. Learned counsel has also submitted that the provisions of Rule 157 are ultra vires Articles 22 of the Constitution. He further submits that there is no evidence on the basis of which the charges levelled against the petitioner may be said to have been proved. The claim made on behalf of the petitioner has been controverted by Mr. D.D. Sharma, learned counsel for the respondents.
The questions that arise for consideration are -
(i) Is the action in conformity with the provisions of Rule 63 (4) and (6)
(ii) Is the action just and fair and in conformity with the principles of natural justice ?
(iii) Is there no evidence on record in support of the charges ?
(iv) Is the provision of Rule 157 ultra vires Article 22 of the Constitution ?
Re: (1)
The records of the case have been examined by the learned counsel for the respondents. After going through the file, Mr. D.D. Sharma has categorically conceded that there is nothing to show that the charge sheet and other information had been furnished to the petitioner atleast 24 hours prior to the commencement of the trial in accordance with the provision of Rule 63(4). In spite of this, learned counsel submits that the trial cannot be said to have been vitiated. He places reliance on the decision of this Court in Surinder Singh v. Union of India and Ors. 1994 (3) S.L.R. 390.
Rule 63 of the Border Security Force Rules, 1969 provides as under:-
"63. Preparation of defence by the accused -
(1) An accused, who has been remanded for trial, shall be afforded proper opportunity for preparing his defence and shall be allowed proper communication with his defending officer or counsel and with his witnesses.
(2) A defending officer shall be appointed to defend an accused who has been remanded for trial unless the accused states in writing that he does not wish such an appointment to be made.
(3) If the prosecution is to be undertaken by a legally qualified officer or by a counsel for the accused shall be notified of this fact in sufficient time to enable him, if he so desires to make arrangements for a legally qualified officer or counsel to defend him.
(4) As soon as practicable after a decision has been taken to place the accused on trial and in any case not less than four days before his trial he shall be given;
(a) a copy of the charge-sheet;
(b) an unexpurgated copy of the record or abstract of evidence showing the passages (if any), which have been expurgated in the copy sent to the senior member;
(c) notice of any additional evidence which the prosecution intends to adduce; and
(d) if the accused so requires, a list of the ranks, names, and units of the members who are to form the Court and of any waiting members.
(5) When an accused is given a copy of the charge-sheet and of the record or abstract of evidence in accordance with this rule, he shall - (a) have the charge explained to him; and
(b) be informed that, upon his making a written request to his Commandant not less than twenty-four hours before his trial requiring the attendance at his trial of a witness (other than a witness for the prosecution) whom he desires to call in his defence (such witness to be named by him), reasonable steps will be taken in accordance with these rules to procure the attendance of any such witness at his trial.
(6) The provisions of Sub-rules (2) and (3) shall not apply in relation to a trial before a Summary Security Force Court and in relation to such a trial the period of four days referred to in Sub-rule (4) shall be construed as twenty-four hours."
A perusal of the above provision shows that an accused is entitled to the grant of a proper opportunity for preparing his defence. He is entitled to communicate with his defending officer or counsel as well as his witnesses. Furthermore, Clause (4) specifically provides that after it has been decided to try the accused person, he shall be given a copy of the charge sheet, the evidence including the additional evidence and the list of the members of the Court. He is also entitled to call witnesses in defence. In case of a trial before a Summary Security Force Court, the period of four days as stipulated in Clause (4) can be construed as 24 hours by virtue of the provision in Clause (6). This is the minimum time that is required to be given to an accused person before the commencement of the trial. Normally, it may appear that the time provided under the rule is not adequate. A person like the petitioner whose educational attainments are limited, may find it actually impossible to prepare his case at such a short notice. Not only the accused, even the officer provide for his assistance may not be trained in the art of cross-examination or may find it well-nigh impossible to decide about the witnesses he may wish to produce in defence. The ordeal may become even more difficult in case of a person who is under arrest. However, in view of the limited issue arising in this case, it is not necessary to go into this matter in detail. Suffice it to notice that 24 hours'' period is the bare minimum prescribed under the rule and the requirement has to be complied with by the authority concerned.
In the present case, it has been conceded that there is nothing on record to show that the requirement of Rule 63 in so far as it provides for the furnishing of the relevant documents etc., atleast 24 hours prior to the commencement of the trial, was complied with. In fact, on the basis of the record, learned counsel has categorically conceded that it does not show that the rule had been complied with. It is clear from the record as also the notice given to the petitioner that the trial had to commence at 9.00 A.M. On May 12, 1992. Information in this behalf was given to the petitioner on May 11, 1992. However, it has not been shown that the information was given or that the documents had been supplied before 9.00 A.M. on the said date. There was, thus, an infraction of the Rule.
As for the decision in Surinder Singh''s case (supra), it deserves mention that Hon''ble N.K. Sodhi, J. was considering the provisions of Rule 34 of the Army Rules, 1954 which deals with the proceedings of the Summary Court Martial. Therein, Rule 36 permits the reduction of the period of 96 hours as provided for in Rule 34. However, in the present case, no provision akin to Rule 36 has been pointed out. In this situation, the decision in Surinder Singh''s case is of no assistance.
In view of the above, it follows that the provisions of Rule 63 have not been complied with in the present case in as much as the petitioner was not supplied the requisite documents etc. atleast 24 hours prior to the commencement of the trial. Accordingly, the first question is answered in the negative.
Re: (ii)
The petitioner was working as a Driver. The allegation was that he had given away 20 ltrs of Diesel to a person outside the force. It was after the completion of the recording of evidence that a decision to try the petitioner was taken. A period of more than 4 months had already elapsed since the date of the alleged incident. In such a situation, the authority could have easily given the petitioner a slightly longer time for the preparation of his defence. Rule 63 as reproduced above does not lay down the maximum time that the employee has to be given. It only provides the minima. It is open to the authority to give him a longer notice. The authority can in its discretion give even a week. The rule does not debar it from doing so. In the circumstances of the present case, when considerable amount of evidence had to be examined and the employee according to the rules is not entitled to even engage a man trained in law for the purpose of defending him, it would be fair and proper to give adequate time so that the right guaranteed under Clause (1) of Rule 63 does not became illusory. It is necessary to give adequate opportunity. In the circumstances of the present case, it does not appear that even 24 hours could have been adequate. Secondly, it is the admitted position that the petitioner was under open arrest. Rule 31 provides that "arrest may be either open arrest or close arrest". In the Manual of B.S.F. law produced by Mr. D.D. Sharma, learned counsel for the respondent, it has been provided at page 72 that "when a person is ordered not to move out beyond the limits of a prescribed area, he is said to be under ''open arrest''. Consequently, the petitioner was under restraint. He was not even free to go out and get help. On account of stress, it may not be possible for him to put all his thoughts together and prepare his defence effectively. It is undoubtedly true that the petitioner was asked if he wanted the assistance of any officer including a legal practitioner. It was, however, categorically stipulated in the order dated May 11, 1992 that "such person shall not examine or cross-examine witnesses or address the court". Consequently, it was only a limited assistance that was permissible to the employee. By and large, he was to be on his own. In such a situation, the time of 24 hours even if allowed to an employee, may not be adequate. In the circumstance of the present case, it does not certainly appear to be adequate.
There is another aspect of the matter. After the conclusion of the evidence produced by the authorities, the petitioner was asked if he intended to call any witness in his defence. He had stated that he wanted to call Constable Gursewak Singh and Ct. Mohammad Iqbal. Thereafter, his statement in defence was recorded. Even Constable Gursewak Singh appeared as a witness. However, the statement of Mohammad Iqbal was not recorded. At page 80, it has been merely written that the accused declined to call second defence witness. This statement is not even signed by the petitioner. Besides this, it also appears that the petitioner was not even informed about the witnesses whose statements had to be recorded on May 12, 1992. For a person at the level of a driver, a proper defence of the case at such a short notice is an uphill task. It appears to have been made worse by the Commandant by not giving adequate information regarding the witnesses whose statements had to be recorded, to the petitioner.
In view of the above, it appears that the petitioner did not have a fair opportunity to defend himself at the trial. The second question is, thus, answered in the negative.
Re. (iii)
Admittedly, 7 witnesses have appeared for the prosecution. A perusal of their statements shows that they have deposed with regard to the charges levelled against the petitioner. In this situation, it cannot be said that there is no evidence in support of the charges. The writ court cannot examine the evidence as a court of appeal. It can only intervene if there is no evidence at all. Such does not appear to be the position in the present case. The third question is, accordingly, answered in the affirmative and the plea raised on behalf of the petitioner, is rejected.
Re: (iv)
Rule 157 provides as under :-
"157. Friend of the accused - During a trial at a Summary Security Force Court an accused may take the assistance of any person including a legal practitioner as he may consider necessary:
Provided that such person shall not examine or cross-examine witnesses or address the Court."
A perusal of the above provision shows that an accused person is entitled to "take the assistance of any person including the legal practitioner as he may consider necessary. The rule recognises the necessity of providing a reasonable opportunity to the accused. The assistance of even a legal practitioner can be taken. However, a proviso has been added which debars the friend of the accused from examining or cross-examining a witness. Once the accused is provided with a friend, who can be present during the trial, it is not understood as to why he is debarred from examining or cross-examining a witness. Continuous propping may not be possible. It may even disturb the proceedings. A person who is being tried may be under lot of stress. That is why he is provided with the assistance of an officer even a legal practitioner. It is true that the right to be defended by a counsel is not a guaranteed right. It is also true that the proceedings before a court can be regulated by law. However, the right of a person who is under restraint to be defended by a legal practitioner of his choice, is guaranteed by Article 22 of the Constitution. The proviso to Rule 157 curtails that right when it debars the legal practitioner from examining or cross-examining a witness.
In view of the above, it is held that the proceedings of trial as well as the order of punishment passed against the petitioner were not in conformity with law. As a result, the order of his dismissal from service cannot be sustained. Accordingly, the order dated May 12, 1992 by which the petitioner was struck off the strength of a force, is set aside. As a result, even the appellate order, a copy of which has been produced as Annexure P-5 with the writ petition is quashed. The petitioner shall be deemed to have continued in service. He will be entitled to the consequential reliefs. However, this will not debar the respondents from proceedings afresh against the petitioner. In the circumstances of the case, there will be no order as to costs.