Allowed

Karamjit Singh Chauhan v. Union of India

Punjab & Haryana HC3 Jan 2012CRWP/1472/2000

Case brief

AI extract

What is this about?

The Court held that the superior authority lacked legal power to set aside a Commandant's punishment merely because it was deemed disproportionate. Consequently, the original punishment was revived, barring the subsequent Summary Security Force Court trial under Section 75 of the BSF Act as a double jeopardy. The writ petition was allowed.

What did the court decide?

The impugned punishment of forfeiture set aside; the original punishment of severe reprimand revived. Petitioner entitled to consequential benefits.

Karamjit Singh Chauhan Vs Union of India — Service and Employment | Punjab & Haryana HC (2012)

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CRIMINAL WRIT PETITION NO.1472 OF 2000 :{ 1 }:

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION: JANUARY 03, 2012

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Karamjit Singh Chauhan

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.....Petitioner

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VERSUS

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Union of India and others

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....Respondents

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CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. Sanjit Sharma, Advocate, for the petitioner.

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Mr. Anil Rathee, Advocate, for the respondent-UOI.

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RANJIT SINGH, J.

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Somewhat interesting issue in regard to the judicial powers exercised by the Commandant in the BSF Battalion and the jurisdiction of his superior authority to interfere therewith arises in the present case.

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Karamjit Singh Chauhan has filed this writ petition to impugn the punishment of forfeiture of seniority of rank and forfeiture of service for promotion for one year and so also the order rejecting his petition, which statedly was dismissed by passing very cryptic and non-speaking order

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and without affording any opportunity of hearing to him. This punishment was imposed on the petitioner by a Summary Security Force Court held on 6.5.1996 at Srinagar. The petitioner, thus, has prayed for issuance of writ of mandamus for restoring his original seniority with all consequential reliefs.

¶21

Shortly noticing, the facts are that the petitioner had joined the service in the Border Security Force (BSF) on 9.4.1973 as Head Constable. In 1985, the petitioner was posted in sector Headquarters at Bandipur. He was attached to Disposal Wing of MT Workshop at headquarters located in Srinagar. The petitioner was required to maintain documents in respect of all the vehicles. The duty to maintain and upkeep the vehicles, however, was that of the drivers with which the petitioner otherwise had no concern.

¶22

On 1.7.1992, an auction of condemned vehicles was scheduled to take place. The auction, however, could not be held as the Government Auctioneer could not reach the location. The auction was then held on 6.7.1992. The technical inspection of the vehicles, to be auctioned, was carried out and there was no deficiency or discrepancy noticed. On 11.7.1992, another auction of obsolete parts like battery, tyres etc. was held. On 12.7.1992, Sh.Vikas Chander called the petitioner and told him that some tyres and batteries of the condemned vehicles auctioned on

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6.7.1992 had already been sold separately. The petitioner responded by saying that said vehicles were checked by the Auction Purchasers and they had found no deficiency. The complete check had also been carried out by various officers. Still, enquiry by Staff Court of Enquiry was ordered by D.I.G., BSF on 3.8.1992 in this regard.

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As per the petitioner, nothing came out of this enquiry and he continued to perform his duties. On 9.11.1992, the petitioner was promoted as Sub Inspector w.e.f. 14.11.1992. This promotion was actually granted to him on 15.11.1992, when he assumed his duties as Sub Inspector. A communication was received on 13.11.1992, requiring the petitioner to move to 108 Battalion BSF. The petitioner, however, was not relieved of his duties in view of the pending enquiry.

¶26

In November 1993, the petitioner was charge sheeted under Section 32 (a) of the BSF Act (for short, “the BSF Act”). He was proceeded against and imposed a punishment of severe reprimand by his Commandant, B.L.Chauhan. Thereafter, the petitioner was relieved from the Battalion and sent back to headquarters Bandipur for his further move on promotion. In March 1994, however, the petitioner was suddenly recalled back to 143 Battalion BSF. The petitioner was served a letter asking him to nominate a defending officer since he was to be put to a trial. Unable to

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understand the reason in this regard, for requiring him to nominate a defending officer, since he had already been punished, the petitioner still complied with the direction. He, however, was informed that officer nominated by him is not acceptable. The petitioner then gave a name of another officer, Shri Ram Sewak, who also was again not provided to him.

¶29

The petitioner then had submitted a detailed letter, demanding justice, on which no action was taken on the ground that his trial by Summary Security Force Court was proposed. Direction was issued to prepare “record of evidence” against the petitioner under Rule 45 of the BSF Rules (for short, “the BSF Rules”). This was done without any hearing of the charge, which is a mandatory requirement under Rule 45 of the BSF Rules. Statements of two witnesses were recorded by M.A.Salaque, Deputy Commandant but suddenly thereafter the petitioner was attached ton 108 Battalion BSF without completing the `record of evidence' against him. There a fresh order for preparing record of evidence was passed on 25.7.1994 but again without complying with the provisions of Rule 45 of the BSF Rules. Two more witnesses were examined and statements of three witnesses recorded at Staff Court of Enquiry was taken on record. This, as per the petitioner, would be in complete violation of the provisions of the BSF Act and the BSF Rules.

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Suddenly, thereafter the petitioner was attached to 115 Battalion BSF. Here, he was issued a fresh draft charge sheet by officiating Commandant. Copy of this charge sheet is annexed with this petition as Annexures P-7 and P-8. Finally on 6.5.1996, trial by way of Summary Security Force Court was held and within one hour and fifteen minutes, the petitioner was sentenced to forfeit seniority or rank and service for the purpose of promotion for one year. The petitioner thereafter was relieved and sent back to 5^th Battalion BSF.

¶32

The petitioner would describe this action to be highhanded one and also bad on account of double jeopardy, being in violation of Article 20 of the Constitution of India. In view of this illegal and arbitrary action, the petitioner felt compelled and forced to seek voluntary retirement from service. The application of the petitioner was allowed and he was retired on 29.3.1997.

¶33

The petitioner then sought supply of various documents. Finally, when he received these documents in Ist week of March, 1999, he filed a statutory petition under Section 117 of the BSF Act. This petition, however, was rejected on 10.1.2000. The petitioner accordingly has filed the present writ petition to impugn the punishment and the subsequent orders, rejecting his petition.

¶34

The counsel for the petitioner has mainly

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challenged this punishment on the ground that the same would be bad on account of double jeopardy. It is pleaded that for the same allegation and the offence, the petitioner was imposed the punishment of severe reprimand by his Commandant but subsequently, he was again tried by Summary Security Force Court and imposed the punishment of forfeiture of service for pension and promotion etc., which would be even barred under the provisions of the BSF Act.

¶37

This criminal writ petition was admitted on 16.3.2006 after having been adjourned on various occasions and was ordered to be heard within one year. While hearing this petition, it is noticed that copy of reply, if any filed, is not available on record. The counsel appearing for Union of India then prepared an application for placing on record the reply dated 20.7.2001, which had been filed but was not available on the record of the case file. The counsel has then prayed for placing on record the copy of the reply dated 18.7.2001. This application had also not been so far filed. The copy of reply is handed over in the Court and is kept on record.

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Since the counsel for the petitioner has pressed hard his ground of challenge that the punishment imposed on the petitioner is bad on account of double jeopardy, the other grounds of attack need not be dealt with.

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It is conceded in the reply that punishment of

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severe reprimand was awarded to the petitioner by Commandant 143 Battalion BSF as is mentioned in the petitioner but it is stated that the same punishment was setaside by the competent authority on the ground that punishment to the petitioner was not commensurate with the gravity of the offence committed and accordingly Commandant 143 Battalion BSF was directed to re-try the petitioner by holding trial by Summary Security Force Court afresh. It is further stated that the petitioner was accordingly tried again on 25.3.1993 and was awarded the impugned punishment. There being no dispute in regard to the factual position, the only question requiring adjudication is whether the respondents are legally justified or empowered to setaside the earlier punishment and, thereafter, hold the trial of the petitioner by the Summary Security Force Court and retry him.

¶42

As per the petitioner, his second trial or retrial for the same offence is barred under the provisions of BSF Act and BSF Rules and also being unconstitutional being hit by principle of double jeopardy and hence, the trial and punishment can not be sustained. The respondents, on the other hand, would contend that earlier trial was set-aside by the competent authority on the ground that the punishment was not commensurate with the gravity of the offence and hence, the competent authority was justified in setting aside

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the punishment as to direct the re-trial of the petitioner. The respondents have, thus, justified their action on this ground. It is also stated that as per the BSF Rules, there is no bar in conducting a de novo trial, though reference is not made to any provision in support of de novo trial.

¶45

The copy of the order, whereby the earlier punishment of severe reprimand was set-aside by the Deputy Inspector General is also annexed with the reply as Annexure R-1 and operative part thereof reads as under:-

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“In exercise of the power vested on me under BSF Act and Rules, I hereby set aside the summary trial proceedings in respect of No.73210008 HC Karamjit Singh of SHQ BSF Bandipur attached with 143 BN BSF held on 21.10.1993 for committing offence u/s 32(a) of BSF Act as the offence is of grievous nature involving moral turpitude and the punishment awarded by the Commandant 143 BN BSF is not proportionate to the offence committed.

¶47

I further direct that the delinquent No.73210008 HC Karamjit Singh be retired by Commandant 143 BN BSF by holding Security Force Court.”

¶48

Whether this action of the respondents is barred by any provision of the BSF Act and the BSF Rules or by the principle of double jeopardy as enshrined in the Constitution is, thus, the core question arising for determination in this case.

¶49

Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once. Apparently, the action taken by the respondents

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is in a clear violation of Article 20 (2) of the Constitution of India, which, in an unambiguous manner provides guarantee that no person shall be prosecuted and punished for the same offence more than once. Where the person is prosecuted and punished for the same offence previously, then Article 20(2) bars the second prosecution. The conditions applicable are that there must have been a previous proceeding before a Court of law or a Judicial Tribunal of competent jurisdiction. The person must have been prosecuted in the previous proceedings. The conviction or acquittal in previous proceedings must be in force at the time of second trial. The offence, which is the subject matter of second proceedings, must be the same as that of the first proceedings, for which he was prosecuted and punished. The subsequent proceedings must be a fresh proceedings where he is for the second time sought to be prosecuted and punished for the same offence. All these conditions apparently are satisfied and, thus, the bar laid down by Article 20(2) is attracted in the facts of the present case.

¶52

The petitioner was charged under Section 32(a) of the BSF Act. As per this Section, any person subject to the BSF Act, who makes away with or is concerned in making away with any arms, ammunition, equipment, instruments, tools, clothing or any other thing being the property of the Government issued to him for his use or entrusted to him,

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can be charged under this Section. The power of the Commandant to award minor punishment is regulated by Section 53 of the BSF Act. As per this Section, Commandant is empowered to award punishment mentioned in the Section to any person subject to the BSF Act other than an officer or a subordinate officer for any offence under the Act. (emphasis mine) The punishments, which can be awarded under the Section, are imprisonment in force custody upto 28 days, detention upto 28 days, confinement to lines upto 28 days, extra drills or duties including the punishment of severe reprimand or reprimand in addition to some other punishments. Section 53 is as under:-

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“53. Minor punishments.- Subject to the provisions of Section 54, a Commandant or such other officer as is, with the consent of Central Government, specified by the Director General may, in the prescribed manner, proceed against a person subject to this Act, otherwise than as an officer or a subordinate officer, who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,-

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(a) imprisonment in Force custody upto twentyeight days;

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(b) detention upto twenty-eight days;

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(d) extra guards or duties;

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(e) deprivation of any special position or special emoluments or any acting rank or reduction to a lower grade of pay;

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(f) forfeiture of good service and good conduct pay;

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(g) severe reprimand or reprimand;

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(h) fine up to fourteen days' pay in any one month;

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(i) deductions from his pay of any sum required to make good such compensation for any expense, loss, damage or destruction caused by him to the Central Government, or to any building or property as may be awarded by his Commandant.”

¶66

The BSF Act and the BSF Rules have their origin and are based on the provisions of the Army Act and Army Rules. Since the BSF Act was legislated in the year 1968, certain modifications have been made in the provisions of the BSF Act and the BSF Rules, which are not found in the Army Act or the Rules. Under the Army Act, there are no restrictions on the powers of the Commanding Officer to try any offence and to dispose of the same by awarding minor punishment, which are prescribed under Section 80 of the Army Act. Similar powers are available to the Commandant

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to try any offence under the BSF Act and to dispose of the same by awarding minor punishment, as given in Section 53 of the BSF Act. The only restriction, which these Sections have imposed is in regard to the jurisdiction and power of the Commanding Officer or the Commandant to proceed against an officer or Junior Commissioned Officer under the Army Act and against Officers and Subordinate Officers under the BSF Act. Under the provisions of Section 53 of the BSF Act, the Officers and Subordinate Officers can not be imposed these minor punishments by the Commandant. Though there are no restrictions in the Army Act or the Army Rules on the powers of the Commanding Officer to dispose of any offence and to award any punishment provided in the relevant Section but the BSF Rules have made some departure in this regard in the form of Rule 47, which has imposed certain restrictions on the power of the Commandant to dispose of certain offences. As per Rule 47, offences under Sections 14 or 15 or clause (a) and (b) of Section 16 or Section 17 or clause (a) of Section 18 or clause (a) of Section 20 or clause (a) of Section 24 or Section 46 other than that of simple hurt or theft or a charge for abetment of an attempt to commit any of these offences are not to be dealt with summarily. The provisions of Rule 47 are as under:-

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“47. Charges not to be dealt with summarily.- A charge for an offence under Section 14 or section

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15 or clauses (a) and (b) of Section 16, or section 17 or clause (a) of section 18 or clause (a) of section 20 or clause (a) of section 24 or section 46 (other than that for simple hurt or theft) or a charge for abetment of or an attempt to commit any of these offences shall not be dealt with summarily.”

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Though not pleaded in the writ petition or in the reply but Rule 47 reproduced above is a provision, which has been introduced by making departure from the parent legislation from which the provisions of the BSF Act and BSF Rules have been almost borrowed. Thus, the offences mentioned in Rule 47 of the BSF Rules, can not be summarily tried by the Commandant. Apart from that, there is no restriction imposed on the summary power of the Commandant either under Section 53 or under any provisions in the BSF Rules or even in any administrative instructions. No administrative instructions otherwise are either relied or are pointed out before me during the arguments.

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A perusal of the provisions of the BSF Act would also show that there are some restriction imposed upon the power and jurisdiction of Summary Security Force Court to try certain offences and the person subject to the BSF Act. As per 74 of the BSF Act empowers the Commandant to hold

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the Summary Security Force Court in respect of certain class of persons subject to the BSF Act. Under Section 74 of the BSF Act, the Commandant is empowered to try any offence punishable under the BSF Act except the offences under Sections 14, 17 and 46 or any offence against the officer holding the Court. The restrictions now provided in Rule 47 of the BSF Rules in regard to the powers of the Commandant to dispose of certain offences apparently is to bring it in tune with the provisions of Section 74 of the BSF Act. It would necessarily mean that the legislature did not intend to impose any further restriction on the power of the Commandant to deal with and try any other offence or offences under the BSF Act. These are those offences only, for which the Commandant has not got jurisdiction to hold the trial by Summary Security Force Court. As Section 74 would show, the Commandant can try these offences as well but only after making reference to the Officer to convene petty Security Force Court unless there are no grave reasons for immediate action and reference can, without detriment to the discipline, can not be made to the officer empowered to convene petty Security Force Court for trial of the alleged offender.

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Section 46 of the BSF Act makes all the civil offences committed by a person subject to the BSF Act to be an offence under the Act, for which a person subject to the Act

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can be so tried. Civil offence, as per Section 2(d), means an offence, which is triable by a criminal Court. This, thus, would mean that all the offences under the Indian Penal Code, including that of murder also are offences under the BSF Act and are triable by various forms of Security Force Courts subject to the restrictions contained therein.

¶79

“Commanding Officer” under the Army Act and “Commandant” under the provisions of BSF Act have unique powers, responsibility and duties to perform. Apart from the administrative duties, which they are called upon to carry out, the Commanding Officer/Commandant respectively under the respective provisions of the Acts applicable to them also exercise various judicial powers and functions. In addition, they have the powers to conduct investigation, hold enquiry and if need be, to try the person subject to holding Summary Court Martial/Summary Security Force Court provided under the Act or charge sheet the person for trial before a higher Forum like General or District Court Martial under the Army Act or General Security Force Court or a petty Security Force Court under the BSF Act. By virtue of his position, the Commanding Officer/Commandant is the authority under the schemes of the Acts to whom the complaint can be made and thereupon the process of law is set in motion. The Commanding Officer/Commandant, on receipt of any complaint or allegation against any person

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subject to the Act, then carries out investigation and thereafter can further initiate the process of preparing summary of evidence under the Army Act and the record of evidence under the provisions of BSF Act. Before taking any action, Commanding Officer/Commandant is required to hold a preliminary investigation, which has been held to be a statutory and mandatory requirement whatever be his position or a rank, which he may be holding. Commanding Officer/ Commandant has even power to dismiss a charge or allegation if he finds that no offence is made out. That would also be in exercise of judicial powers and such case cannot even be reopened by any authority superior in command to the Commanding Officer/ Commandant. Apart from these powers and duties, Commanding Officer and the Commandant can also exercise certain more judicial powers and can award punishment also but exercise of such powers are restricted in respect of the persons subject to the respective Acts as per the rank and position held by the persons accused. Besides, the Commanding Officer/Commandant can also try a class of certain persons subject to the respective Acts by way of court martial, which is termed as “summary Court Martial” under the Army Act and “Summary Security Force Court” under the BSF Act. Such powers exercised by the Commanding Officer/Commandant are unique in its nature where he is not

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only required to hold investigation but he alone then can act as a Court and award punishments to a class of persons subject to the respective Acts. This is on account of a necessity, which the legislature has felt in order to maintain high standard of discipline in such Forces. Such powers by the Commanding Officer/Commandant have invariably been upheld without much challenge to this unique combination of powers, which are bestowed upon the Commanding Officer and Commandant. The powers so exercised by the Commandant in this case under Section 53 of the BSF Act are, thus, required to be appreciated in this background. Once the Commanding Officer, in exercise of his judicial powers, passes any order, then it can only be interfered with in accordance with law, if there is any such enabling provision under the respective Acts on the basis of which such interference could be made. The impugned order passed by the Superior Authority in this regard to set-aside the punishment imposed on the petitioner by the Commandant in exercise of his power under Section 53 of the BSF Act would have to be seen.

¶84

There is no provision under the Act, whereby the superior authority is empowered to interfere in the punishment imposed by the Commandant under Section 53 of the BSF Act on any ground whatsoever. So long as the Commandant acts within the four corners of Section 53 of

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the BSF Act read with Rule 47 of the Rules, even if there be some other administrative instructions putting certain restrictions on the powers of the Commandant, it would not make any difference and their disregard, if malafide or otherwise, by the Commandant, would only make him personally liable but would not in any way effect his competency to act under Section 53 of the BSF Act nor would it render his award invalid in any manner.

¶87

If a case has been disposed of by the Commandant summarily under Section 53 of the BSF Act, then re-trial of the accused person for the same offence is barred. This is so clearly provided under Section 75 of the BSF Act. This Section clearly stipulates that when any person subject to the BSF Act has been acquitted or convicted of any offence either by Security Force Court or by a criminal Court or has been dealt with under Sections 53 or 55, then he shall not be liable to be tried again for the same offence by a Security Force Court or dealt with under the said Section. Section 75 of the BSF Act is as under:-

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“Prohibition of second trial.-(1) When any person subject to this Act has been acquitted or convicted of an offence by a Security Force Court or by a Criminal Court or has been dealt with under Section 53 or under Section 55, he shall not be liable to be tried again for the same offence by a

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Security Force Court or dealt with under the said Section.

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(2) When any person, subject to this Act, has been acquitted or convicted of an offence by a Security Force Court or has been dealt with under Section 53 or Section 55, he shall not be liable to be tried again by a criminal Court for the same offence or on the same facts.”

¶92

Thus, apart from Article 20(2) of the Constitution of India, even the Act has made a specific provision, prohibiting the second trial of those cases which had earlier been dealt with, leading to acquittal or conviction for an offence by a Security Force Court or by a criminal Court or where it was dealt with under Section 53 of the BSF Act or Section 55 of the BSF Act. In such a case, the person is not liable to be tried again for the same offence by Security Force Court and also can not be dealt with again under Section 53 or Section 55 of the BSF Act as the case may be. Section 75 also prohibits a trial by a criminal Court for the same offence or on the same facts in those cases where person subject to the act has been acquitted or convicted of an offence by the Security Force Court or has been dealt with Sections 53 or 55 of the BSF Act. Thus, retrial or a fresh trial for the same offence is barred specifically under the BSF Act and this aspect clearly has escaped notice of the

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authorities while holding the trial of the petitioner by Summary Security Force Court, which had imposed upon the petitioner the impugned punishment.

¶95

Before proceeding further, it may need a notice here that Mr.Rathee has pointed out that this Court may not have territorial jurisdiction to entertain this writ petition as no part of cause of action has arisen under the territorial jurisdiction of this Court. The counsel for the petitioner, however, points out that this plea is not raised in the reply filed on behalf of Union of India. The writ petition was filed in the year 2000. The reply was filed in the year 2001. The writ petition stands admitted and is now coming up for hearing. Once the objection to the jurisdiction is not raised and is not pressed at the time when the writ petition was admitted, the respondents can not be permitted now to raise this plea at this belated stage. It is just to dislodge the petitioner, who has pursued his remedy before this Court and this petition is pending for about 11 years. The plea of jurisdiction, thus, having not been raised at the first available opportunity is not entertained at this belated stage. The respondents have in fact acquiesced to the jurisdiction of this Court in this case.

¶96

Let us now examine the validity of the plea raised on behalf of the respondents that retrial has been validly held after setting-aside the summary trial proceedings on

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the ground that the punishment was not commensurate with the gravity of the offence charged. In other words, it is to be seen if the punishment or proceedings of Summary Security Force Court could be set-aside on the ground that punishment was not commensurate.

¶99

The summary trial proceedings have been setaside on the ground that offence was of a grievous nature and the punishment awarded is not proportionate to the offence committed. There is no provision either under the BSF Act or on any legal basis, which can empower an authority to set-aside the validly held trial or proceedings on the ground that punishment imposed is disproportionate. No provision could be brought to my notice whereby DIG could validly interfere in the proceedings of Security Force Court on the ground that the punishment imposed by the Commandant in exercise of his judicial powers under the BSF Act is disproportionate. The learned counsel for the respondents could not refer to any of the provisions in the BSF Act or BSF Rules or otherwise any principle of law, which would authorise Deputy Inspector General or any other superior authority to validly interfere in the punishment imposed on the petitioner by Commandant in exercise of his judicial power. Even in the impugned order, it is not disclosed as to under which provision of law this power has been so exercised. There is no source indicated in this

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regard even in reply. Certainly, this power is unknown to law and has been exercised by Deputy Inspector General without the support of any legal provisions. Plea is not that the proceedings are illegal or unjust, for which the power to annual the proceedings could be so invoked. Punishment imposed, even if found to be lenient or disproportionate, can not effect the finding returned. Thus, it is not open to interfere in any validly held proceedings or trial leading to conviction and punishment on the ground that the punishment is disproportionate.

¶102

To further appreciate the submissions, reference here can be made to the provisions of Rule 74 of the BSF Rules. Under this Rule even an objection could be made by an accused person for plea in bar of the trial on the ground that he has been previously acquitted or convicted of the offence by the competent Criminal Court or by a Security Force Court or has been dealt with under Section 53 or Section 55 of the BSF Act, as the case may be or even on the ground that charge in respect of the offence has been dismissed or disposed of as provided under Rule 45(b) of the BSF Rules. The petitioner, thus, could have validly raise a plea in bar of his trial by Summary Security Force Court on the ground that he has previously been tried for the same offence and upon conviction, imposed the punishment of severe reprimand.

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Incidentally, it may be noticed that the punishment, which can be imposed by Security Force Court are given in Section 48 of the BSF Act. Apart from other punishments, severe reprimand or reprimand are the punishments, which can be imposed by all forms of Security Force Court. This is the punishment, which was imposed on the petitioner, which was set-aside on the ground that it was not proportionate to the offence committed. I have not been able to find any provision or a source or authority in law whereby proceedings of a validly held trial can be set-aside on the ground that the punishment imposed is not proportionate to the offence committed. Such a mode, if left open, would lead to certain unfair and illegal consequences, which would also be in violation of the Constitutional guarantee under Article 20 and even Article 21 of the Constitution of India. A validly imposed punishment may be open to be challenged by any accused person on the ground of being harsh or conviction being bad. There are legal provision in the procedural codes for pleading that the punishment imposed is inadequate or not proportionate to the gravity of the offence charged and proved. There is no such provision under the BSF Act, which would empower or authorise any authority, either to suo-motu act to interfere in the punishment or to enhance the punishment or to setaside the proceedings as has been done in this case on the

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ground that the punishment is not proportionate to the offence charged.

¶107

To further elucidate, reference here can be made to the powers that can be exercised by superior authority while dealing with the proceedings of other Forum of trial under the BSF Act. This order passed by the DIG is, thus, without any authority of law and is totally and utterly illegal. Such an order, thus, can not be sustained. There would not be any option but to set-aside the same.

¶108

To understand the power and jurisdiction of Commandant under the BSF Act and the BSF Rules in order to appreciate the illegality emerging in this case has already been noticed in detail above.

¶109

Order setting-aside the punishment of severe reprimand imposed on the petitioner has, therefore, to go. Result is that the punishment of severe reprimand imposed on the petitioner would stand revived. Once that happens, the impugned punishment imposed on the petitioner can not be sustained, being bad on the ground of double jeopardy and clearly hit by the provisions of Section 75 of the BSF Act. Once the petitioner was imposed the punishment of severe reprimand, which now would stand revived, Section 75 of the BSF Act, would come to his rescue to bar his trial by Summary Security Force Court. There is a clear bar laid down in Section 75 of the BSF Act and hence, the Summary

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Security Force Court held in respect of the petitioner would be rendered without jurisdiction, being clearly hit by the provisions of Section 75 of the BSF Act. The punishment and trial by Summary Security Force Court, thus, would have to be set-aside. It is so ordered.

¶112

The net result is that the impugned punishment of forfeiture of seniority of rank and forfeiture of service for promotion for one year as imposed on the petitioner is setaside. The punishment of severe reprimand would stand revived. The petitioner would be held entitled to all the consequential benefits arising of this order.

¶113

The writ petition is allowed in the above terms.

¶114

January 03, 2012 ( RANJIT SINGH ) khurmi/rts JUDGE

Karamjit Singh Chauhan v. Union of India

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Karamjit Singh Chauhan v. Union of India

Case brief

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