Service Law – Border Security Force Act, 1968 – Border Security Force Rules, 1969 – rr. 49(3), 142(2) – Dismissal from service – Plea of guilty – Procedural safeguards u/r. 142(2) – Non-compliance of – Allegations against Border Security Force constable of clicking the photographs of lady doctor while she was taking bath – Proceedings initiated by the Summary Security Force Court wherein constable pleaded guilty – Order of dismissal from service against the constable – Set aside by the High Court on the ground of non-compliance of the prescribed procedure as also no evidence – Correctness: Held: High Court was justified in finding the dismissal of the constable on the basis of the plea of guilty unwarranted and liable to be set aside in exercise of powers u/Art. 226 – Abstract of evidence recorded was not provided to the constable and twenty-four hours’ time was not given to him for reflection thus, a clear infraction of the proviso to sub rule (3) of r. 49 – Confession, if any, made during the course of preparation of the record of evidence, liable to be ignored – Minutes of the proceedings of the SSFC was nothing but a verbataim reproduction of the statutory rule, thus, non-compliance of r. 142(2) – Minutes of the proceedings recording the plea of guilty did not bear the signature of the constable – In absence of signature of the constable, pleading guilty appears to be an unnatural conduct and further dents the credibility of the SSFC proceeding – Furthermore, there was no eye-witness of the incident; the camera was recovered from some other person’s house; the witness to the keeping of the camera by the constable, in her previous statement made no such disclosure; there was no cogent evidence with regard to ownership of that camera; and, even the reel was not developed to confirm the allegations – In these circumstances, heavy burden lay on the department to satisfy the conscience of the Court that the plea of guilty was recorded after due compliance of the procedure prescribed and the confession was made voluntarily – More so, when the record of evidence contained no worthwhile evidence regarding the guilt of the constable, the SSFC ought to have advised the petitioner to withdraw the plea of guilt – In view thereof, not a fit case for interference in exercise of the jurisdiction u/Art. 136 – Constitution of India. [Paras 27, 28 and 35-39] Border Security Force Act, 1968 – s. 87 – General rules as to evidence – Proceedings before the Security Force Court – Applicability of the Evidence Act:
Held: By virtue of s. 87 of the BSF Act, the general rules of evidence as laid in the Evidence Act, subject to the provisions of the BSF Act, are applicable to all proceedings before Security Force Court – Thus, by virtue of s. 145 of the Evidence Act, witness may be cross examined as to previous statements made by him – Evidence Act, 1872 – s. 145. [Para 28] Border Security Force Rules, 1969 – r. 142(2) – Plea of guilty – Procedural safeguards u/r. 142(2):
Held: Sub-rule (2) of r. 142 would indicate that on the accused pleading guilty, before a finding of “guilty” is recorded, the SSFC is required to ascertain whether the accused understands the nature and meaning of the charge to which he has pleaded guilty as also must be informed of the general effect of that plea and of the difference in procedure which will be made by the plea of guilty – Even if the accused pleads guilty, if it appears from the record or abstract of evidence or otherwise that the accused ought to plead not guilty, the SSFC is required to advise him to withdraw that plea – Strict adherence of the procedural safeguards laid down in sub-rule (2) of r. 142 is warranted before accepting a plea of guilty. [Paras 34 and 35] OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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