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Vijay Shankar Pandey v. Union Of India And Others - WRIT - A No. 34539 of 2001 [2004] RD-AH 1025 (4 October 2004)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No.26

Civil Misc. Writ Petition No. 34539 of 2001

Vijay Shankar Pandey Vs.        Union of India and others.


Hon'ble Vikram Nath, J.

The petitioner has prayed for quashing of the order dated 18.05.2001 issued by the Commandant 11th Battalion, Border Security Force (Annexure 9 to the petition) as Presiding Officer of the Summary Security Force Court, constituted under the Border Security Force Act, 1968 whereby the petitioner was awarded the punishment of dismissal from service as a Member (Constable) of the Border Security Force. The service conditions of the petitioner are covered by the provisions contained in The Border Security Force Act, 1968 and The Border Security Force Rules, 1969 (here in after referred to as the Act and the Rules).

Facts giving rise to this petition are that the petitioner was appointed as a constable in the year 1988 in the Border Security Force (in short BSF). Initially he was posted in 66th Battalion BSF, Ganga Nagar, Rajasthan. Subsequently he was posted in 11th Battalion BSF which was deployed at District Malda, Narayanpur, West Bengal on the border of Bangladesh. At the relevant time the petitioner was on duty at Fence Gate No. 9 on the border of Bangladesh at the Elendary Out Post. On 06.04.2001 a complaint was lodged to the Commandant 11th Battalion BSF by one Sub Sudama Lal, Inspector of the same Battalion that at about 17.00 hours on the same day while he was passing through Elendary in a 1.5 Ton Army Vehicle, as soon as he reached Gate No. 9 he saw few cattle running towards Bangladesh from the side of the gate which were being chased away by Bangladeshi people and 3 men were running towards Indian side. Sub Sudama Lal inquired from the petitioner who was on duty as observer at the Fence Gate No. 9 as to why he allowed the cattle to cross over the border. The petitioner denied having allowed any cattle to cross over. He further stated that the cattle seen running were Bangladeshi. On instruction from Sub Sudama Lal the petitioner was asked to open the gate and on opening of the gate fresh hoof marks of cattle were noticed towards Bangladesh side. Sub Sudama Lal mentioned in his complaint that on pressure being put on the petitioner he admitted to allow 6 pairs of cattle to cross over Bangladesh. On this complaint of Sub Sudama Lal cognizance was taken on 07.04.2001. Charge sheet was issued by the Commandant, 11th Battalion BSF to the petitioner as follows :-

"In that he

on 06th April 2001 at about 17.10 hours while on OP duty at fence gate No.09 of BOP Elendary, improperly allowed six pairs of cattle to cross over to Bangladesh by providing access through the said fence gate."

Further the Commandant appointed Sri Kashmira Singh, Adjutant for preliminary inquiry and to record the evidence on 08.04.2001. Sri Kashmira Singh recorded the evidence on 08.04.2001.

The petitioner denied the charges alleged against him and stated that the animals found running were Bangladeshi cattle, he had not allowed any access through the Gate to any cattle to cross over; that he was being victimized. He further stated that near the boundary line there was a pond where the cattle were drinking water and on hearing the sound of the vehicle they started running. Pursuant to the denial of the charge by the petitioner a Summary Security Force Trial was ordered on 09.04.2001 and the petitioner was informed to attend the Summary Security Force Court on 11.04.2001 at 09.00 hours at the Battalion Head Quarter and for the said purpose he may appoint an officer as friend of accused. On the same day i.e. on 09.04.2001 the petitioner was placed under close arrest and was directed not to leave the Battalion Head Quarter without permission of the Commanding Officer. On 10.04.2001 the Commandant of the Battalion appointed the members of the Summary Security Force Court to be held on 11.04.2001. It is alleged that on 11.04.2001 after examination of witness before the SSFC the petitioner was found guilty of the charge and awarded the sentence of dismissal from service as the offence committed by him was an act pre-judicial to good order and discipline of the Force under Section 40 of the Act. The sentence of the SSFC were promulgated on 11.04.2001 and the name of the petitioner was struck off from the 11th Battalion BSF with effect from the same date. The Deputy Inspector General, SHQ, BSF, Malda has counter signed the proceedings as Reviewing Officer on15.05.2001. Annexure 9 order impugned in the petition is an order of the Commandant dated 18.05.2001, which was sent to the petitioner at his permanent address at District Mirzapur. Against the said order dated 18.05.2001 the present petition has been filed.

On the request of the petitioner made in the petition as well as in the rejoinder affidavit the original records of the Summary Security Force Court were summoned pursuant to the orders dated 14.11.2002, 06.01.2003 and 16.09.2004. The reasons for summoning the original record appears to be that even along with the counter affidavit no documents were filed and only a plain counter affidavit was filed denying the allegations made in the petition and alleging that due procedure laid down under the Act and the Rules have been followed and there is no illegality warranting interference by this Court.

I have heard Shri Yogesh Agrawal, learned counsel for the petitioner and Shri B.K.Singh, Raghubanshi, Additional Standing Counsel, Union of India, representing the respondents and have also examined the original records.

Before dealing with the respective contentions of the parties it would be relevant to refer to certain statutory provisions of the Act and the Rules. Section 11 of the Act deals with major punishments like dismissal, removal or reduction. The offences are provided in Chapter III of the Act. However in the present case the proceedings are covered by section 40 of the Act. Section 40 of the Act mentions that violation of good order and discipline of the Force being guilty of any act or omission not specified in the Act shall be tried by and on conviction by Security Force Court be liable to suffer imprisonment which may extend to 7 years or such less punishment as in this Act mentioned. The Summary Security Force Court is constituted under Section 70 of the Act. Chapter XI of the Rules (Rules 133 to 161) deals with the proceedings of Summary Security Force Court with which we are presently concerned. Rule 48 deals with the procedure to be adopted in preparing the record of evidence (ROE).

The first contention raised by the Counsel for the petitioner is that the SSFC has not been fairly conducted and that opportunity has not been afforded to the petitioner in recording of the evidence on 08.04.2001 and 11.04.2001. He was not given any opportunity to cross-examine witnesses thereby vitiating the proceedings. The evidence has been recorded in violation of the statutory provisions that are laid down under the Act and Rules in particular Chapter XI of the Rules.  

The second contention of the Counsel for the petitioner is that on the basis of the material on record it could not be established that the petitioner had been guilty of the alleged charge of illegally allowing passage to cattle from Indian side to Bangladesh.

Counsel for the respondent on the other hand has strongly contended that the petitioner has been found guilty of the charge alleged after following the due procedure laid down under the Act and Rules. It is further contended that sufficient opportunity was given to the petitioner and in case he himself declined to cross examine it is not open for him to allege that no opportunity was afforded.

The contention relating to the denial of due opportunity as provided under the Act and the Rules has substance. The record of the SSFC indicates that at the close of every witness except PW-1, it has been mentioned that the petitioner declined cross-examination. Another strange aspect is that in the record of evidence (ROE) dated 08.04.2001 it is recorded that the petitioner declined for cross-examining all the witnesses. However in the SSFC the petitioner cross-examined the complainant PW-1, but thereafter it is recorded that he declined to cross-examine the rest of the witnesses. It appears that in the cross-examination of the PW-1 the Court got disturbed and therefore did not allow any further cross-examination.

Rules 145, 146 and 147 of the Rules provide the manner in which the evidence is to be recorded after plea of "not guilty" is taken by the accused. The same are quoted here under:-

145. Procedure after plea of : "Not guilty"--

(1) After the plea of "Not guilty" to any charge, is recorded the evidence for the prosecution will be taken.

(2) At the close of the evidence for the prosecution the accused shall be asked if he has anything to say in his defence, or may defer such address until he has called his witness.

(3) The accused may then call lhis witnesses, including also witnesses to character.

146. Witnesses in reply to defence:-

The Court may, if it thinks it necessary in the interests of justice, call witnesses in reply to the defence.

147. Evidence of witnesses:-

The provisions of rules 88,89 and 90 shall so far as may be, apply to the evidence of witnesses at a Summary Security Force Court as they apply to the evidence of witnesses at a General or Petty Security Force Court.

Further rule 147 refers to Rules 88 to 90, which are made applicable in similar manner as they apply to General or Petty Security Force Court. The same are quoted here under:-

88. Examination of witnesses:-

(1) A witness may be examined by the person calling him and may be cross-examined by the opposite party to the proceedings and on the conclusion of any such cross-examination may be re-examined by the person who called him on matters arising out of the cross-examination.

(2) (a) The person examining a witness shall put his questions to the witness orally and unless an objection is made by the witness, the Court, the Law officer, the prosecutor or by the accused, the witness shall reply forthwith.

(b) Where such an objection is made, the witness shall not reply until the objection has been disposed of.

(3)The Court may allow the cross-examination or re-examination of a witness to be postponed.

(4) Before the examination of a witness, he shall be administered an oath or affirmation in the following form or in such other form to the same purport as the Court ascertains to be in accordance with his religion or otherwise binding on his conscience.


I.........................................swear by Almighty God that whatever I shall state, shall be the truth, the whole truth and nothing but the truth.

                                     FORM OF AFFIRMATION

I.......................................do solemnly, truly and sincerely declare and affirm that whatever I shall state, shall be the truth, the whole truth and nothing but the truth.

89. Questioning by the Court:-

(1) The presiding Officer, the Law Officer and any member of the Court may put questions to a witness.

(2) Upon any such question being answered, the prosecutor and the accused may put to the witness such questions arising from the answer, which he has given as seem proper to the Court.

90. Reading over of evidence:-

(1) (a) The record which has been made of the evidence given by a witness shall be read back to him before he leaves the Court and when this is done he may ask for the record to be corrected or explain the evidence which he has given.

(b) Where any such correction is made or explanation given, the prosecutor and the accused may put such questions to the witness respecting the correction or explanation as seem proper to the Court.

(2) When a shorthand writer is employed it shall not be necessary to comply with sub-rule (1), if, in the opinion of the Court and the Law Officer (if any) it is unnecessary to do so:

Provided that if any witness so demands, sub-rule (1) shall be complied with.

Rule 88 (1) of the Rules clearly stipulate that witness may be examined by the person calling him and may be cross-examined by the opposite party to the proceedings. Rule 88(3) of the Rules also provides that Court may allow cross-examination or re-examination of a witness to be postponed.

In the present case it has been recorded at the close of each statement that accused declined cross-examination and that it is certified that rules 89 and 90 of the Rules have been complied.

In the record of evidence (ROE) prepared by Sri Kashmira Singh on 08.04.2001 cross-examination of any of the witnesses has not been made by the accused. He has not made or was not allowed is the question. Rule 48 of the Rules provides the manner in which record of evidence is to be prepared. The same is quoted here under:-

48. Record of evidence:-

(1) The officer ordering the record of evidence] may either prepare the record of evidence himself or detail another officer to do so.

(2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross- examine all witnesses who give evidence against him:

[Provided that where statement of any witness at a court of enquiry is available, examination of such a witness may be dispensed with and the original copy of the said statement may be taken on record. A copy thereof shall be given to the accused and he shall have the right to cross-examine if he was not afforded an opportunity to cross examine the witness at the court of Inquiry.]

(3) After all the witnesses against the accused have been examined, he shall be cautioned in the following terms; "You may make a statement if you wish to do so, you are not bound to make one and whatever you state shall be taken down in writing and may be used in evidence," After having been cautioned in the aforesaid manner whatever the accused states shall be taken down in writing.

(4)The accused may call witnesses in defence and the officer recording the evidence may ask any question that may be necessary to clarify the evidence given by such witnesses.

(5) All witnesses shall give evidence on oath or affirmation:

Provided that, no oath or affirmation shall be given to the accused nor shall be cross-examined.

(6)(a) The statements given by witnesses shall ordinarily be recorded in narrative form and the officer recording the evidence may, at the request of the accused, permit any portion of the evidence to be recorded in the form of question and answer.

(b) The witness shall sign their statements after the same have been read over and explained to them.

[(6A) The provisions of section 89 of the Act shall apply for procuring the attendance of witnesses before the officer preparing the Record of Evidence.]

(7) Where a witness cannot be compelled to attend or is not available or his attendance cannot be procured without an undue expenditure of time or money and after the officer recording the evidence has given a certificate in this behalf a written statements signed by such witness may be read to the accused and included in the record of evidence.

(8) After the recording of evidence is completed the officer recording the evidence shall give a certificate in the following form:

"Certified that the record of evidence ordered by.....................Commandant............was made in the presence and hearing of the accused and the provisions of rule 48 have been complied with"

There is specific provision under rule 48(2) of the Rules that accused shall have right to cross-examine all the witnesses who give evidence against him. The record of evidence (ROE) was also part of the original record produced before this Court. Strangely at the end of the statement of each witness it is recorded that the accused declined cross-examination. The manner in which the evidence has been recorded does not inspire confidence in the Court that the same has been fairly recorded and that the petitioner knowingly did not cross-examine any of the witnesses. There are no signatures in the record of evidence as has been mentioned in the end of the record of evidence (ROE) by Sri Kashmira Singh that the petitioner refused to sign the proceedings. Contrary to this in paragraph 10 of the counter affidavit it has been stated that the ROE was prepared in the presence of the petitioner and that he had put his signatures at the end of each statement. This is contrary to the original record. It is because of these allegations and counter allegations that the original record was summoned. The original record gives a different picture to the whole proceedings and the manner in which it has been recorded. In my view the proceedings have not been recorded in a fair and impartial manner. All these facts indicate that the petitioner has not been afforded any opportunity in the ROE as well as the SSFC. There has been denial of opportunity.  

In view of the above discussions I am of the view that the SSFC has not been carried out in the spirit as laid down by the Act and the Rules. There has been violation of the statutory provisions. The SSFC was convened with predetermination to dismiss the petitioner irrespective as to whether the evidence, which comes forth, will establish the charge or not.

It is next submitted by the learned Counsel for the petitioner that even on the material available the charge could not have been found established. There was no evidence at all to prove the alleged charge. It is contended that firstly none of the witnesses had deposed to have seen the gate open; secondly that all witnesses have specifically deposed that the gate was closed; thirdly that the hoof marks found are reported to be only on Bangladesh side and not on the Indian side; fourthly that no investigation or inquiry of any sort was conducted to find out about the men found running towards the Indian side; fifthly that these men were neither interrogated nor examined in evidence; lastly that the cattle grazing near Bangladesh side of the border was prohibited and that there were never any cattle around.

Perusal of the evidence recorded by the SSFC support the contention raised by the learned counsel for the petitioner. In all five witnesses were examined on behalf of the prosecution.

PW-1 Sri Sudama Lal the complainant has reiterated his complaint. His cross-examination by the accused is note worthy. It is recorded as follows:

"Cross examination by the accused

I have not given any pressure on the accused to make any false statement.

I saw some hoof marks, all of them were leading towards Bangladesh side.

I have not seen any hoof marks of cattle heads to proof as some cattle have come out from the fencing gate.

As I have seen 3 men running from OP point towards Indian village Elandary, I asked SI(G) Hari Kishan to enquire if the cattle heads were from that village.

While I observed cattle heads and men running towards Bangladesh, from my vehicle about 100 yards from OP point, I did not see the accused near the gate for opening / closing."  

Subsequently when questions were asked by the SSFC, the witness PW-1 has not been able to confirm that cattle were prohibited near the boundary or that they never came near the border. What has been said in reply is that he had no such reports in his AOR that cattle are coming to the Indian Territory. No further explanation has come forward regarding subsequent inquiry which he had himself directed regarding cattle heads being of village Elandery or not.

PW-2 Vijay Kumar, the driver of the vehicle has stated that on the date of the incident while the vehicle was moving towards gate no. 9 at a place about 100 yards short of the gate Sub Sudama Lal showed him some men running, on which he saw 3 men running towards Indian village Elandery. Later on he was asked to stop the vehicle and thereafter Sub Sudama Lal asked him to get down the vehicle to see running cattle going towards Bangladesh which were at a distance of 150-200 yards inside Bangladesh territory. The SSFC at this stage sought to clarify from the witness that on 08.04.2001 he had said during ROE (record of evidence) that he was shown running cattle (10-12 cattle heads) being run by men towards Bangladesh. The witness Vijay Kumar stated in reply that his statement given today is correct and that he had given similar statement on 08.04.2001 but it was not correctly recorded. The SSFC made three attempts to change the statement of the witness but he remained unaffected and reiterated his deposition made before the SSFC.

PW-3 L/Nk RBN Singh who was also accompanying Sub Sudama Lal in the vehicle has stated that when the accused was asked by Sub Sudama Lal that he had allowed the cattle to cross over, the accused denied the same saying that he had not done so and the cattle were Bangladeshi cattle. PW-3 has deposed only of seeing cattle heads being taken by men towards Bangladesh. He has further stated that his signatures as well as the signature of the Driver Vijay Kumar were taken on a piece of paper by Sub Sudama Lal.

PW-4 is SI(G) Hari Kishan who was posted at BOP Elandery has deposed about being summoned and seeing fresh hoof marks.

At the close of the statement of PW-4 a note is recorded that it was considered necessary to contradict the statement of PW-2, Vijay Kumar and therefore Sri Kashmira Singh DC was examined as PW-5.

PW-5 is Sri Kashmira Singh who has stated that presently he was doing as Adjutant in the 11th Battalion BSF and that he was detailed to record the evidence on 08.04.2001. A perusal of his statement indicates that he has tried to counter the stand taken by the driver Vijay Kumar in his statement before the SSFC that in the record of evidence his statement was not correctly recorded. He has tried to prove that the statement recorded on 08.04.2001 was the correct statement.  

It is note worthy that all the statements were recorded on 11.04.2001 and the finding of guilt recorded and punishment of dismissal awarded on the same day.

The effect of the SSFC to insist upon PW-2 to charge his statement and the evidence given by PW-5 to disprove the deposition of PW-2 creates doubt in the mind of this Court that whether SSFC was fairly conducting itself. Another fact which confirms the deposition of PW-2 comes from the deposition of PW-3 RBN Singh who stated that Vijay Kumar (PW-2) and he (PW-3) both had put signatures on a piece of paper for recording of evidence. The piece of paper apparently refers to a blank piece of paper. The statements had not been recorded till then and were subsequently recorded. Further the manner in which the statement of PW-5 has been recorded also hints that it was a case of predetermined dismissal of the petitioner.

The petitioner at the very first confrontation had stated that he had not allowed any passage to the Indian cattle and had explained that there was a pond near the border and the Bangladeshi cattle grazing near the border and drinking water from the pond on hearing the noise of vehicle had fled away. In this respect the hand written statement of the petitioner dated 08.04.2001 (Exhibit C to the record of evidence dated 08.04.2001) is very clear. There is no denial by any of the witnesses that there was no pond near the border. The statements of all the prosecution witnesses regarding grazing of the cattle near the border is also silent. The petitioner had stated in the statement recorded before the SSFC that on that very day four cattle heads (bullocks) had crossed the border and had returned as per the records and there were entries in the register. This fact has also not been denied by any of the witnesses.

The contention of the learned counsel for the petitioner is that the charge has not been proved at all and still the petitioner has been dismissed and as such the order of dismissal cannot be sustained. It is further contended by the learned counsel for the petitioner that in the entire evidence recorded none of the witnesses have deposed that firstly either the gate was open or that they saw the cattle crossing over the border from Indian side to Bangladesh side. Secondly the marks of the cattle feet were only found on the Bangladesh side and no marks have been found on the Indian side as such the charge of 6 pair of cattle crossing over the border cannot be maintained.

Learned counsel for the respondents was also required to look into the records and point out any evidence or statement to indicate that the marks of the cattle feet were available on the Indian side.  He has made a statement that he could not find out any evidence to this effect. The entire proceedings for dismissal of the petitioner has proceeded on the assumption that since the marks of feet was of the cattle which was seen on the Bangladesh side therefore the cattle have crossed over. Such an assumption cannot be sustained unless and until evidence is found that those cattle were crossing over the border from Indian side to Bangladesh side, In the absence of any such evidence the petitioner could not have been found guilty. It is not the case of the respondents that the petitioner had illegally opened the gate or the gate was found to be open at the relevant time by any witnesses. Coming of the cattle near the border is also not denied. The hoof marks of the cattle near the border is a regular feature. There is regular movement of the cattle crossing the border. A register was maintained to record the movement of the cattle from the Indian side to Bangladesh side and back for ploughing the fields. All these aspects needed to be clarified and explained.  

There is yet another aspect of the matter. Rule 151 of the Rules lays down the procedure on finding of "Guilty". It provides that the Court may record of its own knowledge or false evidence of any record with regard to general character, age, service, rank and any recognised acts of gallantry or distinguished conduct of the accused and any previous convictions or punishments, and any decoration or reward in possession of the accused. The Commandant recorded that petitioner has not been previously convicted by Security Force Court or Criminal Court. He further recorded that in the summary of entries in the defaulter sheet there were no entries in the last 12 months and only one time absence without leave under section 19(a) of the Act since enrolment. It is further recorded that the petitioner is in possession of the following rewards:-

(i)      DIG's cash rewards -   01

(ii)Commandent's cash rewards - 09.

(iii)Commandent's CC.  -06

These also the overall performance of the petitioner in his service career was not bad or hopeless.

The charge alleged is of improperly allowing six pairs of cattle to cross over to Bangladesh. The charge itself indicates that allowing of cattle to cross over to Bangladesh was permissible but subject to certain procedure being followed. So as the worst case the petitioner could be charged of not following the procedure. No motives are imputed to the petitioner for allowing the crossing over of the cattle. It is not disported that other cattle were allowed to cross over the same day in respect of which there were entries in the register.

In the circumstances the punishment of dismissal even if it is assumed that the charge was established, would be too harsh and not commensurate with the charge alleged.

However, since there is denial of opportunity, violation of the procedure prescribed and even the evidence and material available does not inspire confidence that the charge stands proved, the impugned order of dismissal is liable to be set aside.

In the circumstances, the conclusion of the SSFC that petitioner illegally allowed passage to six pairs of cattle to Bangladesh is not tenable and cannot be sustained.

In view of the above, the petition succeeds and is allowed. The impugned punishment of dismissal dated 11.04.2001 and 18.5.2001 are set aside. The petitioner may be reinstated with full back wages and all consequential benefits.

Date: 04.10.2004



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