Allowed

Ex. Constable Sarkar Tudu v. Union of India

Rajasthan HC4 Aug 2022RSTAY/201/2022

Case brief

AI extract

What is this about?

A Special Central Jail advocate filed a criminal stay application and writ petition on behalf of a convicted BSF constable dismissed from service for an offence under the POCSO Act. The court granted suspension of sentence subject to sureties and personal bond, allowing time for constitutional arguments regarding jurisdiction and alternative remedies to be adjudicated.

What did the court decide?

Sentence passed against the petitioner shall remain suspended till final disposal of the present criminal writ petition on condition of executing sureties and personal bond.

Ex. Constable Sarkar Tudu Vs Union of India — Pension and Retirement Benefits | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Criminal Misc. Stay Application No.201/2022

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S.B. Criminal Writ Petition No. 14/2022

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Ex. Constable Sarkar Tudu S/o Lakhan Tadu, Aged About 30 Years, R/o Pokhariya, East Singhbhum, Jharkhand. (At Present Special Central Jail, Salawas, Dausa, Rajasthan)

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----Petitioner

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Versus

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Union Of India, Through Secretary, Ministry Of Home Affairs, Govt Of India, New Delhi.

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Special Director General (WC), Head Quarters Special Director General (WC), Border Security Force, Chandigarh.

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Commandant 13 BN, BSF, Magra Camp, Barmer, Rajasthan.

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Miss Puja Kumari D/o Shri Naresh Singh, R/o Village Nathpadia, Post Office Baturi, District Bhagalpur, Bihar.

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Constable Ravi Shankar Of 107 BN BSF, Magra Camp, Barmer, Rajasthan. Regimental No. 121018418

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----Respondents

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For Petitioner(s)	:	Mr. Dinesh Vishnoi
For Respondent(s)	:	Mr. Muktesh Maheshwari

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JUSTICE DINESH MEHTA

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Order

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15/09/2022

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The present application has been filed on behalf of the petitioner seeking stay of the impugned order and suspension of sentence.

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A criminal writ petition has also been filed under Article 226 of the Constitution challenging the findings of the order dated 08.02.2021 passed by the General Security Force Court, at BN Headquarters, 13 BN, BSF, Barmer (hereinafter referred to as "the trial Court"), which was confirmed by Special Director General

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(2 of 5)

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[CRLMS-201/2022]

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(WC), Head Quarters Special Director General (WC), Border Security Force, Chandigarh and the order dated 17.02.2021, passed by Special Director General (WC), Head Quarters Special Director General (WC), Border Security Force, Chandigarh.

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While arguing that the General Security Force Court did not have jurisdiction to try the offence alleged against the petitioner and the same ought to have been tried by the POCSO Court, learned counsel for the petitioner invites Court’s attention towards the allegations levelled in the FIR and argued that in any case, no serious offence has been committed, which warranted 5 years' imprisonment and dismissal from service.

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Highlighting that even according to the complainant, the petitioner had simply pulled her by holding her hand, learned counsel argues that if the petitioner's intention was to sexually assault the girl, he would have definitely followed her to the terrace, where she rushed after the petitioner tried to hold her. 5. Mr. Maheshwari, learned counsel for the respondent - Union of India, at the outset, raises an objection regarding maintainability of the present petition under Article 226 of the Constitution of India by contending that the petitioner was having an efficacious alternative remedy available under Section 170(2) of the Boarder Security Force Act, 1968, which he has not chosen to avail and having abandoned such remedy, he cannot invoke the discretionary jurisdiction of this Court.

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It is also contended that the petitioner has not explained the delay of 9 months - the impugned order was passed in March, 2021, whereas the present petition has been filed in January, 2022.

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(3 of 5)

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[CRLMS-201/2022]

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On merit, learned counsel argues that the petitioner who was serving in armed forces was required to observe highest standard of moral and ethical standards and his act can neither be ignored nor can a lenient view be adopted towards him.

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In response to the argument of Mr. Maheshwari with regard to maintainability, Mr. Vishnoi, learned counsel for the petitioner underscores that the petitioner is behind bars and there is nobody to take care of his legal and fundamental rights.

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Learned counsel for the petitioner submits that petitioner's friends and relatives have approached the counsel and they were not aware of the statutory provisions. Considering that a period of more than 8 months had since passed, he chose to invoke jurisdiction of this Court under Article 226 and 227 of the Constitution of India, as the limitation of filing the appeal had since passed.

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He also implores that as the present petition is pending since January, 2022 the petitioner may not be relegated to avail alternative remedy at this juncture.

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Heard on the stay application.

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So far as argument of Mr. Maheshwari relating to availability of alternative remedy and delay is concerned, in the face of the fact that the petitioner is behind bars and the present petition has been filed signed in jail and forwarded to be filed through his relatives, this Court is inclined to accept the stand of the petitioner that he was unaware of the provisions. In the opinion of this Court, relegating the petitioner to avail alternative remedy after 18 months of the impugned order (passed in March, 2021) would be travesty of justice.

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(4 of 5)

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[CRLMS-201/2022]

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That apart, considering the fact that a copy of petition was supplied to learned Additional Solicitor General in pursuance of order dated 19.01.2021. And preliminary objection regarding maintainability of the writ petition has been firstly raised, in the reply which was filed in August, now when after the petition has remained pending for more than 9 months, this Court cannot reject the petition.

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On merit of the case, suffice it to observe that not only the complainant even the prosecutirx's version is, that the petitioner tried to pull her by holding her hand, whereafter she escaped and went up the terrace. Maybe, petitioner's conduct is unbecoming of a member of armed force but such strict approach cannot be applied when it comes to his conviction and punishment that too under the provisions of POCSO Act.

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It is a fit case to exercise jurisdiction under Article 226 and 227 of the Constitution of India in order to impart substantial justice to the petitioner, who has not only been convicted but has also been dismissed from the service.

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Having regard to the facts and circumstances of the case; considering the submissions made on behalf of the respective parties; the material made available for my perusal; and since the petitioner has already undergone sentence of about one and half year against the total sentence of five year as well as the fact that the decision of the present criminal writ petition is likely to take time, but without expressing any final opinion on the merit and de-merit of the case, I am inclined to suspend the sentence awarded to the petitioner during the pendency of the present criminal writ petition.

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(5 of 5)

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[CRLMS-201/2022]

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Accordingly, the application for suspension of sentence is allowed and it is ordered that the sentence passed by learned Court below vide order dated 08.02.2021 against the accusedpetitioner Ex. Constable Sarkar Tudu S/o Lakhan Tadu shall remain suspended till final disposal of present criminal writ petition provided he executes two sureties in the sum of Rs.50,000/- each and a personal bond in the sum of Rs.1,00,000/to the satisfaction of the Superintendent, Special Central Jail, Shyalawas, Dausa for his appearance in this Court on 17.10.2022 and whenever ordered to do so, till the disposal of the petition on the conditions indicated below:-

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That he will appear before the trial court in the month of January every year till the present petition is decided. 2. That if the petitioner changes the place of residence, he will give the changed address in writing to the trial court, High Court as well as to his counsel in the High Court.

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Similarly if sureties change their addresses, they will give in writing their changed address to the trial court.

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The learned trial court shall keep the record of attendance of the accused petitioner in a separate file. Such file be registered as Criminal Misc. Case related to the GSFC Trial in which the accused petitioner was tried and convicted. A copy of this order shall also be placed in that file for ready reference. In case the said accused petitioner does not appear before the trial Court, the learned trial Court shall report the matter to the High Court for cancellation of bail.

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Stay application stands disposed of accordingly.

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(DINESH MEHTA),J

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268-Ramesh/-

Ex. Constable Sarkar Tudu v. Union of India

Case brief

What is this about?

What did the court decide?

Ex. Constable Sarkar Tudu v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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