Suresh Lal Koul vs Union of India (UOI) and Another

O.P. Sharma, J.—The petitioner a Sub-Inspector in the Border Security Force was tried by a General Security Force Court for committing

extortion. He was found guilty of having committed the offence of extortion and sentenced to suffer rigorous imprisonment for one year and

dismissal from service by order dated 13-3-1993.

The undisputed facts are that petitioner joined B.S.F. as constable on 1-4-1987 and subsequently was promoted to the rank of Sub-Inspector

with effect from 14-12-1987. In May, 1992 the location of 131 Bn of BSF was somewhere in Kupwara. While posted there he allegedly picked

up a resident of village Reshnag (Lalpura) of District Kupwara and released him only after extorting a promise from his father Ghulam Mohammed

Pir to pay Rs. 5,000/-. The information about the petitioner having demanded Rs. 5,000/- for the release of his son from Ghulam Mohammed Pir

was received by Sh. Ajit Singh, Commandant of 131 Bn, BSF on 17-7-1992 from Colonel (GS) of 28th Inf. Division. Further Major Kulwant

Singh and one Major Sharma of Army Intelligence had also told him that money would exchange hands between 14:30 hours and 15:30 hours on

17-7-1992. He was also informed by these two officers that they had written expression ""Raja Rani"" and ""Chor Sepoy"" on the currency notes.

On the same day around 15:30 hours Sh. V.K. Jha, Deputy Commandant of 131 Bn BSF recovered Rs. 5,000/- from the personal search of

the petitioner. The currency notes were of the same description and the petitioner failed to account for the amount found in his possession.

The finding of the General Security Force Court have been challenged mainly on the ground that Court was not properly convened because its

members did not subscribe to the oath as prescribed under Rule 67 of the BSF Rules. Another ground of challenge is that finding is based on no

evidence because the personal search of the petitioner by Sh. V.K. Jha was not in accordance with the provisions of Code of Criminal Procedure.

It is also challenged on the plea that Section 84 of the BSF Act has not been complied with, vitiate the proceedings of the General Security Force

Court.

The stand of the respondents is that every provision of the Act and the Rules have been followed and the findings of the General Security Force

Court do not suffer from any infirmity.

Mr. Raina learned counsel appearing for the petitioner argued that Rule 67 of the BSF Rules prescribes a specific form in which the Oath is to

be subscribed by each member of the Court. But there is no contemporaneous record evidencing that Rule 67 has been observed. The record of

the proceedings of G.S.F. Court, according to him does not reveal that members of the Court had subscribed to the Oath in the manner as

provided by Rule 67 of the BSF Rules. Mr. Bhat appearing for the respondents, however, argued that every provisions of the Act and the Rules

has been followed and complied. In support of this, he placed reliance on the record of the proceedings of the General Security Force Court in

which it is specifically mentioned that every provision of the Act and the Rules has been observed.

The question involved for consideration is in what form the record of oath or affirmation is to be maintained. This takes us to Rule 67 which

reads as under :-

Swearing or affirming of members.- As soon as the Court is constituted with the proper number of officers who are not objected to or

objections in respect of whom have been overruled, an oath or affirmation shall be administered to every member in presence of the accused in

one of the following forms or in such other form to the same purport as the Court ascertains to be according to his religion or otherwise binding on

his conscience.

The requirement of the rule is that when the Court is constituted with proper number of officers an oath or affirmation shall be administered to

every member in presence of the accused. How the Court assembles after it is convened and how it has to satisfy that Rules applicable have been

complied is provided in Chapter IX of the BSF Rules. The Chapter is styled as Procedure for Security Force Courts. Rule 65(1)(a) and Sub-

section (4) of this section reads as follows :-

65(1) Assembly and Swearing of Court.- (1) Upon a Security Force Court assembling the Court, shall, before beginning the trial satisfy itself in

closed Court:-

(a) that the Court has been convened in accordance with the Act and these rules;

Sub-section (4) when the Court has complied with this rule and is ready to proceed with the trial, the presiding officer shall open the Court and the

trial shall begin.

How this rule has been observed can be ascertained from the record. The proceedings of the G.S.F. Court held on 18-2-1993 reveal that S/Sh.

S.S. Chahar, A.K. Singhal Roy, S.D. Thomas and A.K. Majumdar were the members while Sh. M.K. Sarkar was its Presiding Officer while Shri

Kuldeep Saini was the Law Officer and the petitioner was represented by Sh. D.N. Ary defending officer. The proceedings commenced with the

following note :-

The order convening the Court, chargesheet and the Record of Evidence are laid before the Court.

The Court satisfy themselves as provided by the BSF Rule-65.

The accused is brought before the Court.

After this accused was told he was free to engage a counsel at his own cost. He was then asked if he had any objection to be tried by the

Presiding Officer or by any of the Officer constituting the Court to which he replied in the negative. After this, the following is recorded :-

The Presiding Officer, members and Law Officer are duly affirmed.

This is proof of the tact that Presiding Officer and all other members of the Court had subscribed to the affirmation as prescribed under Rule 67 of

the Rules. Similar procedure has been followed in case of witnesses also who are to subscribe to the oath under Rule 88. There is no provision

either under the Act or the Rules that the form of Oath as prescribed in Rule 67 must be signed by the person subscribing and the one

administering it and rightly so because what is important is that subscribing the oath or affirmation in the manner prescribed and the proof that the

Rule has been complied. Once this is observed Rule 67 is complied in letter and spirit and the Court is properly constituted, so this argument has

no merit and is rejected accordingly.

This takes us to the challenge that Section 84 of the Act has been complied. This section reads as under :-

(1) At all trials by a General Security Force Court or by a Petty Security Force Court, as soon as the Court is assembled, the names of the

presiding officer and members shall be read over to the accused who shall thereupon be asked whether he objects to being tried by any officer

sitting on the Court.

(2) If the accused objects to such officer, his objection and also the reply thereto of the officer objected to shall be heard and recorded, and the

remaining officers of the Court shall, in the absence of the challenged officer decide on the objection.

(3) If the objection is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member

objected to shall retire, and his vacancy may be filled in the prescribed manner, by another officer subject to the same right of the accused to

object.

(4) When no challenge is made, or when a challenge has been made and disallowed, or the place of every officer successfully challenged has been

filled by another officer to whom no objection is made or allowed, the Court shall proceed with the trial.

The perusal of the proceedings reveal that the petitioner was specifically asked if he had any objection about any member of the Security Force

Court being its member to which he replied in the negative. So this challenge is also rejected. It was next argued that it is a case of no evidence

and, therefore, the order is liable to be quashed because neither Major Kulwant Singh nor Major Sharma who had marked the currency notes

were examined. However, evidence of Sh. B.K. Jha, who recovered the amount has been corroborated by the evidence of Ghulam Mohd. Pir.

The identity of currency note is also clinching evidence. It is thus not a case of no evidence, but only a matter of appreciation of evidence. In Union

of India (UOI) and Others Vs. Major A. Hussain (IC-14827), , it has been laid down that Court-Martial Proceedings are subject to Judicial

Review under Article 226 but Court-Martial is not subject to Superintendence of the High Court under Article 227 or 104 of the State

Constitution. If a Court-Martial is properly convened and there was no challenge to its composition and the proceedings are found in accordance

with the procedure prescribed, it was held by Their Lordships, (the Courts) must stay its hand. Since the General Security Force Court in this case

has been convened in accordance with the law and rules, the Court has appreciated the evidence in returning the finding of guilt, this Court cannot

re-examine the evidence specially when the challenge is only to the sufficiency of evidence and not lack of evidence. In view of this, there is no

merit in this petition which is dismissed without any order as to costs.