BSF and SSB in North Bengal and the law governing them

Border Security Force (BSF) with 257,363 personnel in 186 battalions; Central Reserve Police Force (CRPF) with 313,678 personnel in 245 battalions (including RAF and COBRA Unit); Central Industrial Security Force (CISF) with 144,418 personnel in 132 battalions; Indo-Tibetan Border Police (ITBP) with 89,432 personnel in 62 battalions; National Security Guard (NSG) with 7,350 personnel, Assam Riffles (AR) with 63,747 personnel in 46 battalions; and, Sashastra Seema Bal (SSB) with 76,337 personnel in 67 battalions, are not Indian Army.  They do not come under Ministry of Defence.  They are in no way connected with the Armed Forces of India except for some joint operation or close cooperation in a given mission.  These 7 are collectively called Central Armed Police Forces (CAPF), f/k/a Paramilitary Forces and are organized with the primary role of - border guarding for BSF (Indo-Pakistan, Indo-Myanmar and India-Bangladesh), ITBP (Indo-China), SSB (Indo-Nepal and Indo-Bhutan); Security of sensitive establishments by CISF, Assisting Police to tackle Law & Order, Counter-Terrorist Operations, Counter Naxal Operations by CRPF, NSG. Apart from the primary role, all CAPFs are involved in assisting Police in Law & Order situations and also Army in Counter-Terrorist Operations. BSF & CRPF have assisted the army during external aggression in the past. CAPFs work along with both Army & Police in different roles assigned to them. They are Organised Group “A” Central Police force.

 

ABOUT BSF and BSF ACT

 

The Border Security Force formally raised on 1 December 1965, is over four decades old, and the largest paramilitary organisation in the world.  The North Bengal Frontier of the BSF covers the North Bengal Districts of Cooch Behar, Jalpaiguri, Uttar Dinajpur, Dakshin Dinajpur, Darjeeling, Kishanganj.  Inspector General Siliguri with its office at Kadamtala, Siliguri, Dist Darjeeling is the Head of the North Bengal Frontier.  The North Bengal Frontier has the responsibility of manning the International Bangladesh Border across the Districts of Jalpaiguri, Uttar Dinajpur, Dakshin Dinajpur, Darjeeling, Kishanganj.  There are 8 sectors along the Border in West Bengal out of which Sector Head Quarter at Cooch Behar (SHQ Sonari), Sector Head Quarter at Siliguri (SHQ Kadamtala), and, Sector Head Quarter at Jalpaiguri (SHQ Raninagar), falls within North Bengal.  There are 204 functional BOPs (Border Out Posts) in North Bengal.  The Personnel and Officers of the BSF are governed by the Border Security Force Act, 1969 and the Rules framed thereunder [Border Security Force Rule, 1969; BSF (Tenure of posting and deputation ) Rules 2000; and, Border Security force (Ceremonials And Marks of Respect) Rules, 1989].

 

The Border Security Force Act, 1969, divided into 10 Chapters and 142 Sections is a complete code for constitution of the force and conditions of service of the members of the force.  Chapter III of the Border Security Force Act, 1969 provides for offences and Chapter IV for Punishments and Penalties in respect of the Offences mentioned in Chapter III.  The Act provides for establishment of Security Force Court [(a) General Security Force Courts; (b) Petty Security Force Courts; and (c) Summary Security Force Courts] under Chapter VI of the Border Security Force Act, 1969.  A General Security Force Court, which consists of Five or more members, may be convened by the Central Government or the Director-General or by any officer empowered in this behalf by warrant of the Director-General and has the power to try any person subject to this Act for any offence punishable thereunder and to pass any sentence authorised thereby.  A Petty Security Force Court may be convened by an officer having power to convene a General Security Force Court or by an officer empowered in this behalf by warrant or any such officer and has power to try any person subject to this Act other than an officer or subordinate officer for any offence made punishable thereunder and to pass any sentence not exceeding two years..  A Petty Security Force Court shall consist of not less than three officers each of whom has held the post of Deputy Superintendent of Police for not less than two whole years.  A Summary Security Force Court may be held by the Commandant of any unit of the Force and he alone shall constitute the Court.  The findings and sentences of General Security Force Courts may be confirmed by the Sector Director General BSF, Kolkatta.  Any person subject to this Act who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director-General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director-General at Delhi, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.

 

FUNDAMENTAL RIGHTS AND THE ARMED FORCES

 

On the issue as to whether members of the armed forces can absolutely exercise and enforce their fundamental rights against the state, the Constitution Bench of the Supreme Court in MANU/SC/0047/1963 : AIR 1965 SC 247 : (1964) 5 SCR 931 Ram Sarup vs. UOI & Anr. held that Article 33 of the Constitution of India expressly empowers the Parliament to determine by law the extent to which any of the rights conferred by Part III of the Constitution, in their application, inter alia, to the members of the armed forces, shall be restricted or abrogated to ensure the proper discharge of their duties and the maintenance of discipline among them. The Parliament can therefore, in exercise of powers conferred by Article 33 of the Constitution of India restrict or abrogate the fundamental rights guaranteed under Part III of the Constitution in their application to the members of the armed forces. Such restriction or abrogation is dependent on specific parliamentary legislation and only law passed by resort to Article 33 can overshadow the rights guaranteed by Articles 21 and 22 of the Constitution of India.

Placing reliance on these principles laid down by the Constitution Bench, in the subsequent pronouncement reported at MANU/SC/0233/1982 : AIR 1982 SC 1413 : (1982) 3 SCC 140 Lt. Col. Prithi Pal Singh Bedi vs. UOI & Ors., it was held that every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as having been enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act. The Court rejected the submission that the law which prescribed procedure for trial of offences by Court Martial must satisfy the requirement of Article 21 because the procedure is prescribed by law and if it stands in derogation of Article 21, to that extent Article 21 in its application to the armed forces is modified by enactment of the procedure in the Army Act itself. These principles have been reiterated in (2003) 9 SCC 630 UOI & Ors. vs. Ex.Flt. Lt. G.S. Bajwa.

 

So far as the rights of members of security forces as the Border Security Force and the permissibility and scope of challenge to the proceedings of the security force courts by way of proceedings under Article 226 are concerned, the Division Bench of the Guwahati High Court had occasion to consider the same in the pronouncement reported at MANU/GH/0170/2007 : (2007) 1 GLT 903 Director General, Border Security Force vs. Iboton Singh (KL). In para 14 & 15, it was held as follows:-

 

"14. While considering the scope of judicial review by the High Court in matters of the proceedings of a trial by a SFC, what is also pertinent to note is that Article 33 of the Constitution has conferred, on Parliament, the power to abridge the fundamental rights of not only armed forces, but also of the forces entrusted with the maintenance of public order. This, however, does not mean that merely because of the fact that a person belongs to an armed force or a force entrusted with the maintenance of public order, he is denuded of the constitutional guarantees given to him by Article 21 of the Constitution, which ensures to every person a fair trial in accordance with law. Viewed from this angle, it is clear that when the procedures prescribed are followed as a mere formality by a SFC and not in substance or in its true spirit, the accused may, in an appropriate case, be held to have been denied a fair trial and such a proceeding may warrant interference by the High Court in exercise of its extra-ordinary jurisdiction under Article 226. The procedure prescribed adopted for trial by a SFC has to be tested on the touchstone of Article 21 and if the procedural safeguards given to a person from the Border Security Force, under the BSF Act and/or the BSF Rules, are violated, violation thereof would, in substance, be denial of the right to a fair trial. A person, even when he comes from the BSF, is as much a citizen as any other citizen of India and he is entitled to all such protections as have been given to him by making various laws in conformity with the provisions of Article 21. The Constitution-makers were conscious of the fact that no more restriction should be placed than what are necessary and indispensable for ensuring maintenance of discipline and proper discharge" of duties by the armed forces and the forces entrusted-with the maintenance of public order. Hence, when an Indian citizen, being a member of any such forces, is tried under its own established mechanism, such as, SFC, on a charge of having committed the civil offence of 'murder' punishable under Section 320 IPC, it is the duty of the High Court to examine, when such a person approaches the High Court with an application under Article 226, to determine if, while holding the trial, the provisions of the BSF Act and the Rules made thereunder, which provide protection to the accused, have been adhered to or not and whether, for the purpose of reaching its findings, the SFC has kept itself informed of all the relevant provisions of the Evidence Act and the Indian Penal Code.

It is for the reasons indicated above that in Union of India v. LT Ballam Singh reported in MANU/SC/0360/2002 : 2002(81)ECC236 , the Apex Court has pointed out that even an army personnel is entitled to the protection, which the Narcotic Drugs and Psychotropic Substances Act (in short, 'the NDPS Act') gives to any other person. In other words, the protection available, in the form of Sections 42 and 50 of the NDPS Act, shall be applicable to the case of even an army personnel, for, there is nothing, in the law, that the protection, given in the NDPS Act, are not applicable to the members of the armed forces. Logically, therefore, when the Evidence Act is applicable to the proceedings of a trial by a SFC, it is but natural to interfere, and, in fact, we have no hesitation in holding, that if the provisions of the Evidence Act are ignored or are not taken into account by a SGFC and/or when the provisions of the Indian Penal Code are not properly applied, such noncompliance may, in an appropriate case, compel the writ Court to interfere, in exercise of its powers under Article 266, with the findings, which may have been reached by either ignoring, or in ignorance of, the relevant provisions of law, particularly, when such non-compliance results in gross miscarriage of justice. This apart, and as already indicated above, the procedural safeguards, which the BSF Act and the Rules themselves provide, cannot be ignored, for, ignoring them may amount to, in a given case, denial of a fair procedure to a person accused of having committed offence under the Indian Penal Code."

It is trite that so far as the procedure for disciplinary action, trials and punishment in respect of personnel of the armed forces, para military forces and security forces is concerned, the provisions of the various special statutes enacted for the purpose is fair procedure within the meaning of the expression for the purposes of ensuring the constitutional guarantees. Deprivation of livelihood, an essential concomitant of the right to life by way of any proceedings has to be by a procedure which is fair, just and reasonable. In view of the principles laid down in the afore noticed judicial pronouncements, strict compliance with the statutory prescription, rules and regulations in this behalf as well as with principles of natural justice to the extent stipulated is therefore essential.

 

Even though the legal position of administrative action against a person employed on a civilian post may not bind the present consideration, however, the principles on the importance of due process, as laid down by the Supreme Court, may be usefully referred to. The domestic disciplinary inquiry is primarily a managerial function. The Apex Court has held that a domestic tribunal holding an inquiry has to abide by rules which apply in this behalf without being unduly influenced by the strict rules of evidence and procedural law. As noticed hereafter, the position under the BSF Act is different.

 

Even in a domestic inquiry, there may be very serious charges and an adverse verdict may result in stigmatizing the delinquent and jeopardizing his future prospects. Certainly, civil and pecuniary consequences may enure and his reputation and livelihood included in his right to life would be at stake. The observations of the Supreme Court in (1986) 3 SCC 454 Sawai Singh Vs. State of Rajasthan have a bearing on the present case and may usefully be extracted. The same reads as follows:-

 

"16. It has been observed by this Court in Suresh Chandra Chakrabarty v. State of West Bengal (1971) ILLJ 293 SC that charges involving consequences of termination of service must be specific, though a departmental enquiry is not like a criminal trial as was noted by this Court in the case of State of Andhra Pradesh v. S. Sree Rama Rao (1964) IILLJ 150 SC and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation.

17. The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties. (See K.L. Tripathi v. State Bank of India and Ors. : (1984) ILLJ 2 SC ) Rules and practices are constantly developing to ensure fairness in the making of decisions which affect people in their daily lives and livelihood. Without such fairness democratic governments cannot exist. Beyond all rules and procedures that is the sine qua non."

 

It is noteworthy that just as disciplinary enquiries, the security force courts are presided over by the establishment personnel only.

The material placed before both is produced departmentally.  In this behalf, it would be useful to consider the statutory position with regard to persons subjected to the Border Security Force. Section 70 of the Border Security Force Act, 1968 (BSF Act hereafter) provides the constitution of a Summary Security Force Court (`SSFC' hereafter). It is permitted under Section 74 to try any offence punishable under the Act subject to certain stipulated exceptions. Sub-section 4 of Section 74 empowers the SSFC to pass any sentence which may be passed under the Act except the sentence of death or of imprisonment for a term exceeding the limit specified in sub-section 5. Sub section 5 of Section 74 limits the power of the SSFC so far as the period of the sentence of imprisonment which may be imposed upto a period of one year if the officer holding the SSFC has held the post of superintendent of police or a post declared by the Central Government by notification to be equivalent thereto of not less than three years or holds a post of a higher rank, or either of the said post. In any case, the sub section restricts the power of Summary Security Force Court to impose punishment to the extent of three years.

 

So far as the scale of punishments which are awardable by a Security Force Court is concerned, the same are prescribed under Section 48 of the BSF Act, 1968 which reads as follows:-

 

48.(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say:-

(a) death;

(b) Imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody,

(c) dismissal from the service;

(d) imprisonment for a term not exceeding three months in Force custody;

(e) reduction to the ranks or to a lower rank or grade or place in this list of their rank in the case of an under-officer;

(f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;

(g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;

(h) fine, in respect of civil offences;

(i) severe reprimand or reprimand except in the case of persons below the rank of an underofficer;

(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty;

(k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal;

Punishments awardable by S e c u r i t y Force Courts BSF ACT 27

(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good.

(2) Each of the punishments specified in sub- section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale."

 

The above gradation makes it apparent that the dismissal from service is considered less severe than imprisonment for a term exceeding three months. It is also evident that the security force courts wield tremendous power so far as persons governed by the BSF Act are concerned.

 

Though the disciplinary enquiries do not culminate in imposition of severest sentences of death or imprisonment, the security force court is statutorily empowered under section 48 of the BSF Act to award such punishments. Certainly, extremely valuable rights of the charged person may be impacted by the punishments which are imposed which may range from the severe penalty of dismissal to forfeiture of pay under the applicable rules. As a result of the penalty, thus a charged person may lose his only means of income. As noticed above, the right to livelihood is an essential part of the right to life. Thus, procedural fairness in matters that may result in loss of means of livelihood becomes essential.

 

The instant case relates to trial for commission of offences under Section 26 & 40 of the BSF Act, 1968 and trial by Summary Security Force Court (`SSFC'). The commission of an offence under Section 26 of the BSF Act, 1968 is punishable by imprisonment extending upto six months or such lesser punishment as is prescribed under the Act. Section 48(c) and thereafter of the statute prescribe dismissal, punishment of reduction of rank and the other punishments set out hereinabove.

 

For commission of the offence under Section 40, the statute prescribes imprisonment for a term which may extend to seven years or such less punishment as mentioned in the Act.

 

It is noteworthy that Section 70 of the BSF Act provides that the commandant of any unit shall hold the SSFC.

 

An SSFC is statutorily provided and the procedure which is to be followed by it is statutorily prescripted under Rules 133 to 161 of Chapter XI of the BSF Rules, 1969. Essential procedural safeguards have been statutorily provided so as to ensure fairness of the procedure which is adopted and obviate arbitrariness in the proceedings.

 

46. The statutory scheme clearly sets out the legislative intent so far as the defence of a personnel covered under the Border Security Force Act is concerned. To facilitate defence of the accused before the courts, the statute provides for a defending officer, friend of accused and counsel at different places. Apart from a trial by the SSFC, Section 64 of the BSF Act provides for General Security Force Courts and Petty Security Force Courts as well which are constituted under sections 65 and 66 of the Act. In view of the issues relating to adequate opportunity to defend the charges raised before this court, reference requires to be made to Rule 122 and 123 which applies to the General or Petty Security Force Courts and reads as follows:-

 

"122. Defending Officer, Friend of Accused and Counsel:- (1) At any General or Petty Security Force Court an accused person may be represented by a counsel or by any officer subject to the Act who shall be called "the defending officer" or assisted by any person whose services he may be able to procure and who shall be called "the friend of the accused". (2) The defending officer shall have the same rights and duties as appertain to a counsel under these rules and shall be under the like obligations. (R.63).

(3) The friend of the accused may advise the accused on all points and suggest the questions to be put to the witnesses, but he shall not examine or cross-examine the witnesses or address the Court.

123. Requirement for Appearance of Counsel

- (1) An accused person intending to be represented by a counsel shall give to his Commandant or to the convening officer the earliest practicable notice of such intention, and, if no sufficient notice has been given, the Court may, if it thinks fit, on the application of the prosecutor, adjourn to enable him to obtain a counsel on behalf of the prosecutor at the trial.

(2) Where the convening officer so directs, counsel may appear alongwith the prosecutor, but in that case, unless the notice referred to in sub- rule (1) has been given by the accused, notice of the direction for counsel to appear shall be given to the accused at such time (not in any case less than seven days) before the trial as would, in the opinion of the Court, has enabled the accused to obtain counsel to assist him at the trial. (3) The counsel, who appears before a Court of behalf of the prosecutor or accused, shall have the same rights as the prosecutor or accused for whom he appears to call, and orally examine, cross- examine, and re-examine witnesses, to put in any plea, and to inspect the proceedings and shall have the right other wise to act in the course of the trial in place of the person on whose behalf he appears, and he shall comply with these rules himself to do any of the aforesaid matters except as regards the statement allowed by sub-rule (3) of rule 93 and sub-rule (4) of rule 101 or except so far as the Court permits him so to do.

(4) When counsel appears on behalf of the prosecutor, the prosecutor if called as witness, may be examined and re-examined as any other witness."

 

It is apparent from the above that in these proceedings, an accused person has a right to be represented by a counsel or any officer of the BSF who shall be called the "defending officer". In the alternative the accused person may be assisted by any person whose services he may be able to procure who shall be called the "friend of the accused". The manner in which a counsel is to be requested for and appointed is stipulated under rule 123. Sub rule 3 of rule 123 provides that such counsel would have the same rights as the prosecutor or accused for whom he appears to call, and orally examine, cross-examine and re-examine witnesses etc. Rule 122 (2) confers the same rights on the defending officer.

 

It is noteworthy that so far as the "friend of accused" is concerned, he has no right of audience and under sub rule 3 of rule 122 is only authorised to advise the accused on all points and suggest the questions to be put to the witnesses, but shall not examine or cross-examine the witnesses or address the court.

 

So far as trial of a person by the SSFC is concerned, rule 157 of the BSF Rules, 1969 provides as follows:-

 

"157. Friend of the accused.- During a trial at a Summary Security Force Court an accused may take the assistance of any person, including a legal practitioner as he may consider necessary. Provided that such person shall not examine or cross-examine witnesses or address the Court."

Rule 157 therefore permits an accused person who is arraigned to stand trial before the summary security force court, to take the assistance of any person during the trial who does not have right of audience before the court. The rule specifically enables the accused person to take the assistance of a legal practitioner during the SSFC.

 

Such person is not permitted right to examine or cross-examine witnesses or address the court. Unlike rule 122(1), rule 157 does not specifically state that such person would be called friend of the accused. However, the very rule 157 is captioned as "Friend of the accused" and the powers conferred under this rule are identical to those of the friend of the accused under Rule 122.

 

Several protections of the rights of a charged person have been laid down by the Supreme Court in AIR 1983 SC 109 Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghuvendra Nadkarni & Ors. wherein the procedure to be followed by the authorities conducting a disciplinary enquiry have been underlined. As noticed above, the principles laid down by the court with regard to an adequate opportunity to defend the charges in a domestic inquiry laid down by the Supreme Court do not strictly apply to a person arraigned to stand trial before a security force court. But the importance given by the courts to ensure due process, especially representation by legal counsel, even in such disciplinary proceedings cannot be sufficiently emphasised. In para 10 of the judgment, the court held as follows:-

 

"10. Even in a domestic enquiry there can be very serious charges and adverse verdict may completely destroy the future of the delinquent employee. The adverse verdict may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake. Such an enquiry is generally treated as a managerial function and the Enquiry Officer is more often a man of the establishment. Ordinarily he combines the role of a Presenting-cum-Prosecuting Officer and an Enquiry Officer a Judge and a prosecutor rolled into one. In the past it could be said that there was an informal atmosphere before such a domestic tribunal and that strict rules of evidence and pitfalls of procedural law did not hamstring the enquiry by such a domestic tribunal. We have moved far away from this stage. The situation is where the employer has on his payrolls labour officers, legal advisers lawyers in the garb of employees and they are appointed Presenting-cum-Prosecuting Officers and the delinquent employee pitted against such legally trained personnel has to defend himself. Now if the rules prescribed for such an enquiry did not place an embargo on the right to the delinquent employee to be represented by a legal practitioner, the matter would be in the discretion of the Enquiry Officer whether looking to the nature of charges, the type of evidence and complex or simple issues that may arise in the course of enquiry, the delinquent employee in order to afford a reasonable opportunity to defend himself should be permitted to appear through a legal practitioner. Why do we say so? Let us recall the nature of enquiry, who held it, where it is held and what is the atmosphere?

Domestic enquiry is claimed to be a managerial function. A man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a court presided over by an unbiased judge. The enquiry officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action. And a quasi- judicial tribunal cannot view the matter with equanimity on inequality of representation. This Court in M. H. Hoscot v. State of Maharashtra : 1978CriLJ1678 clearly ruled that in criminal trial where prosecution is in the hands of public prosecutor, accused, for adequate representation, must have legal aid at State cost. This will apply mutatis mutandis to the present situation."

 

The proceedings before the Security Force Court deserve to be treated even more seriously in as much as the person concerned may not only lose his source of livelihood, but he may be deprived of his personal liberty and sentenced to imprisonment. Therefore, the respondents must strictly abide by the statutory safeguards while conducting the proceedings of the security force courts.

 

The issue which would require to be addressed is as to what is the nature of assistance which the friend appointed under Rule 157 is to render to the accused person who is standing trial before the SSFC. The expression assistance is not statutorily defined.

 

It is noteworthy that Section 8(e) of the Conservation of Foreign Exchange & Prevention of Smuggling Act, 1974 prohibits entitlement of a detenue to a legal practitioner from appearance before the advisory board. However, keeping in view the fact that the detention of a citizen under the enactment is a serious and severe invasion of his fundamental rights guaranteed under Article 19 and 21 of the Constitution, the Supreme Court has read into Section 8(e) of the COFEPOSA Act, 1974, an entitlement of a detenue to make a request for legal assistance to the advisory board which is bound to consider such a request as and when made. The Supreme Court has considered that in order to ensure that the power of preventive detention is not used indiscriminately to settle scores or to short- circuit the process of investigation and trial of an alleged reference. (Ref: AIR 2008 SC 2528 State of Maharashtra vs. Zubir Haji Qasim).

 

The propriety of legal assistance for the detenue, its nature and sufficiency despite the statutory provision has thus been read into proceedings before the advisory board and the right of the detenue to make a request to it for the same has been provided as a safeguard to ensure that his rights are protected. The consideration of this issue in several judicial precedents would shed valuable light on the interpretation of the expression 'friend of the accused' in respect of a person who has been arraigned to stand trial before the SSFC.

 

On this issue in para 94 of the landmark judgment of the Supreme Court reported at (1982) 1 SCC 271 A.K. Roy Vs. Union of India & Ors.,in the context of detention under the Maintenance of Internal Security Act, 1971 and the National Security Act, the court held as follows:-

 

"94. Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Board's room, may lack the ease and composure to present his point of view. He may be "tonguetied, nervous, confused or wanting in intelligence", (see Pelt v. Greyhound Racing Association Ltd.) [1969] 1 Q.B. 125, and if justice to be done, he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and therefore, if a statute excludes that facility expressly, it would not be open to the tribunal to allow it. Fairness, as said by Lord Denning M.R., in Maynard v. Osmond [1977] 1 Q.B. 240, 253 can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility."

 

Placing reliance on the above pronouncement, so far as the meaning of the expression 'friend of accused' is concerned, in the pronouncement of the Apex Court reported at (1988) 1 SCC 116 Johney D'Couto Vs. State of Tamil Nadu, the court ruled on the nature of the assistance rendered by such friend in the following terms:-

"6. The rule in A.K. Roy's case (supra) made it clear that the detenu was entitled to the assistance of a 'friend'. The word 'friend' used there was obviously not intended to carry the meaning of the term in common parlance. One of the meanings of the word 'friend' according to the Collins English Dictionary is "an ally in a fight or cause; supporter".

The term 'friend' used in the judgments of this Court was more in this sense than meaning a person known well to another and regarded with liking, affection and loyalty. A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court. The Advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer. As has been indicated by this Court, what cannot be permitted directly should not be allowed to be done in an indirect way. Sundararajan, in this view of the matter, was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was not justified. It is not for this Court to examine and assess what prejudice has been caused to the appellant on account of such denial. This Court has reiterated the position that matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law."

 

Adequacy of the procedure which meets the tests of Article 21 & 33 mandates that no one shall be deprived of his life and liberty except of the procedure prescribed by law. The provisions for appointment of a competent defence officer and friend of accused have been incorporated in the statute to ensure such fairness. Fair play in action would be essential and the accused person before the SSFC would be entitled to a reasonable opportunity to defend himself.

 

In view of the mandate of Rule 157, such charged person is entitled to have the assistance of even a legal practitioner. It is obvious that such legally trained mind would provide valuable inputs and advice to the person standing trial to not only with regard to the applicable legal position but also analysis of the factual matrix and assimilation of the available evidence. He would guide the direction, manner and extent of the cross-examination and could ensure that the accused person is able to see that his defence is not compromised in any manner.

 

 

Investigation into an offence and summary dismissal of the case has been provided under Chapter VII of the BSF Rules. Rule 43 requires that where it is alleged that a person subject to the Act has committed an offence punishable thereunder, the allegation shall be reduced to writing in the prescribed form. Thereafter, under sub-rule 1 of rule 45, if the person charged is an enrolled person, the company Commandant is required to give the person concerned an opportunity of hearing. In these proceedings, the charge and the statement of witnesses is read over to the accused. If written statements are not available, the Commandant shall hear as many witnesses as he may consider essential to enable him to determine the issue. The accused person is required to be given an opportunity to cross-examine the witnesses and to make a statement. Under sub-rule 2 of rule 45, after hearing the charges, the Commandant may award such punishment to the accused which he is empowered to award; or dismiss the charge; or remand the accused, for preparing a record of evidence or for preparation of an record of evidence against him or remand him for trial by a SSFC.

 

Rule 48 prescribes the manner in which the record of evidence is to be prepared by a commandant or an officer detailed by him to do so. Such delegatee is also a member of the force or establishment. It is natural human conduct that a commandant who is delegating his power of recording of the evidence would normally do so to a like minded person.

 

Sub-rule (2) of Rule 48 prescribes that the statement of witnesses would be recorded in the presence of the accused who shall have the right to cross examine all those witnesses who give evidence against him. Under sub-rule (3), after examination of all the witnesses, the accused person is liable to be cautioned and thereafter his statement is required to be taken down in writing. So far as the caution which is required to be given to the accused person, the same is prescribed under sub-rule (3) whereby the officer recording the evidence is required to inform the accused of the options available to him as to whether to make a statement or not. The accused is required to be informed that such statement as made by him, would be taken in writing and may be used as evidence against him. Only thereafter statement if any, made by him is to be taken down in writing.

 

The above narration would show that substantial statutory power and discretion is conferred on the officer recording the evidence which would enable him to give a particular slant to the evidence and the statements which he was recording or abstracting. There is sufficient opportunity also to influence and impact the statement and conduct of an accused person on the part of officer so detailed in view of the explanations and cautions he has to administer to him.

 

Once completed, the record of evidence is required to placed before the Commandant. Under Rule 51, upon going through the record of evidence, the Commandant is empowered to inter alia dismiss the charges; or rehear the charge and award one of the summary punishments; or try the accused by a Summary Security Force Court; or apply to a competent officer or authority to convene a court for the trial of the accused. As per the statutory scheme, substantial discretion is conferred on the Commandant under Section 70 even to take a final decision based on such record of evidence. The record of evidence, preparation whereof may be directed, is therefore of tremendous importance.

 

So far as the trial is concerned, the commandant of any unit alone is empowered to conduct the Summary Security Force Court ('SSFC' hereafter) under Section 70 of the Act.

 

It is important to note that the officer recording the record of evidence was not the authority who was to adjudicate upon the innocence or guilt of the petitioner with regard to the offence with which he was charged. However, it would still be wrong to undermine the significance and the role of the officer recording the evidence, merely because the role of preparing record of evidence is not on the same platform as that of a decision making authority. The nature of task entrusted upon such officer and its relevance in the decision making process in any disciplinary proceedings cannot be overlooked.

 

Therefore, even though the officer who prepares the record of evidence is not an adjudicator or the judge in the matter, however, he occupies a valuable position, as his manner of preparing the record of evidence, and noticing the statements and observations are significant enough to be able to influence the result of the consideration by the commandant merely by the manner in he which he records the record of evidence and his approach in recording the same.

 

As already noticed above, right to livelihood is an essential part of the Article 21 of the Constitution of India. The importance of the permissible assistance to an accused person before th e security force court is underlined by the statutory prescriptions. Failure to grant such opportunity would result in essentials of not only the principles of natural justice being violated but under the given statutory provisions, is a breach of the requirement of Rule 157. It tantamounts to denial of a fair opportunity of representation in the trial leading to procedural unfairness.

 

The persons of armed forces cannot be denied of the rights provided for in the Indian Constitution. The Supreme Court has once again upheld the same in 2007 (7) SCALE 53 Sheel Kr. Roy Vs. Secretary M/o Defence & Ors. and stated thus:-

 

21 ........ It is now a well settled legal principle which has firmly been accepted throughout the world that a person merely by joining Armed Forces does not cease to be a citizen or be deprived of his human or constitutional right. This aspect of the matter has been considered by a Division Bench of the Delhi High Court in Nirmal Lakra Vs. Union of India & Ors. reported in 2003 (1) SLJ 151.

 

It is often argued that disciplinary proceedings being quasi judicial in nature attract the principles of natural justice as the order in the proceeding involves civil consequences. Th Apex Court in a catena of judgments has held that the deprivation of livelihood by an order of dismissal has to be just, fair and reasonable. As such the requirements of natural justice cannot be denied to any one. Thus, the appointment and actual assistance of a defending officer or a friend becomes inevitable.

 

The observations of the Apex Court on the issue as to whether the fundamental right to legal aid could be denied to an appellant merely because he did not apply for legal aid, throw valuable light on the issue as to whether the alleged refusal of the petitioner to appointment of a defence assistance could justify the conduct of the respondent in thrusting Sh. Bhatti as the friend of the accused on the petitioner. In its judgment reported at AIR 1986 SC 991 Suk Das vs. Union Territory of Arunachal Pradesh, so far as awareness of rights of the persons are concerned, the Apex Court observed as follows :-

 

"6. But the question is whether this fundamental right could lawfully be denied to the appellant if he did not apply for free legal aid. Is the exercise of this fundamental right conditioned upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him? Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advise in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor finds themselves can be alleviating to some extent by creating legal awareness amongst the poor. That is why it has always been recognised as one of the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would in these circumstances make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose."

It is settled that the right to legal aid and speedy trial are part of the guarantee of human rights envisaged by Article 21 of the Constitution of India (Ref.: AIR 1991 SC 1 State of Maharashtra Vs. M.P. Vaish; MANU/SC/0119/1978 : 1978 Crl. L. J. 1678 M.H. Hoskot Vs. State of Maharashtra; 1991 Crl.L. J. 2717 A.R. Antulay Vs. R.S. Nayak & Anr.)

 

In view of the restricted right of members of the armed forces and paramilitary forces and abrogation of an absolute right to legal assistance which stands limited by statutory provisions especially during the trials by court martials and security force courts, the rights of a person arraigned before a special court as a court martial or the security force courts, which are similar, assumes special importance.

 

The legislative intent is apparent. It recognises the rights of the accused to contest the charges for which he is tried and to take the assistance of any person including a legal practitioner, who he may consider necessary.

 

Section 8 of the Border Security Force Act makes the provisions of the Indian Evidence Act applicable to all proceedings before a Summary Security Force Court.

 

When the statute does not provide for legal representation or any form of assistance by a friend, the discretion lies with the adjudicating authority. The factors that must be taken into consideration in deciding the same are as follows: seriousness of the charge or penalty; whether any points of law are likely to arise; the capacity of a person to represent their own case; procedural difficulties; need for speedy decision making and the need for fairness between the individual and the officers concerned. When the charge is of a serious and complex nature, the request of the delinquent to be represented through counsel or agent could be conceded. (Ref.: (MANU/SC/0469/1993 : (1993) 2 SCC 115 Crescent Dyes & Chemicals Ltd. Vs. Ram Naresh Tripathi)

 

Rule 157 has permitted engagement of a legal practitioner as a friend of the accused. The obvious legislative intent was to ensure that the rights of an accused person may be under adjudication by a summary method and hence has permitted even engagement of a legal practitioner to assist the accused persons. In this background, assistance has to be real and meaningful. The respondents cannot get away with merely appointing just any person for this purpose.

 

Even though Rule 157 of the BSF Rules prohibits the friend of accused from examining or cross-examining witnesses or addressing the court, however, his mandate is to assist the accused person.

 

It is the necessity of even-handedness that the assistance be effective. The effective assistance by a defending officer or a friend of the accused cannot be denied to the accused in a disciplinary proceeding. The Apex Court in (2008) 4 SCC 1 Union of India & Ors. Vs. Naman Singh Sekhawat recognizing the need for effective assistance held thus:-

 

"19. In the departmental proceedings the appellant was bound to comply with the principles of natural justice. Copies of some documents were not supplied. Services of a legal practitioner, may not be a matter of right, but he was atleast entitled to the effective assistance of the departmental representative, Shri Madhukar Sharma. The same was also for all intent and purport denied."

 

The assistance which is to be afforded to an accused person is not only required to be adequate but it has to be meaningful. A person who is so appointed has to be fit to render legally permissible assistance to the accused so as to render his defense of the charges meaningful and fair. An opportunity to defend cannot be defeated by not providing as a friend of the accused, such a person who is capable of giving fair, proper and effective assistance to the accused person. The very fact that an accused person is permitted to seek assistance of even a legal practitioner would show that the assistance which is to be given to the accused person in conducting his defence is of a competent person.

 

The Division Bench of the Gauhati High Court in Director General, Border Security Force & Ors. Vs. Iboton Singh (Kh) (supra) considered the scope of judicial review of the findings of the Summary Security Force and had held as follows:-

 

"10. While considering the scope of judicial review of the findings of a SFC, it also needs to be borne in mind that a SFC is not subject to power of superintendence of the High Court under Article 227 of the Constitution of India. Though the proceedings of the SFC fall outside the purview of Article 227, these proceedings are nonetheless subject to the, overall, power of judicial review by the High Court under Article 226 of the Constitution. If a SFC has been properly convened, there is no challenge to its constitution and if the procedure, which it followed, was in accordance with the procedure prescribed by the BSF Act and the BSF Rules, the High Court would not interfere with the findings of such a Court unless the findings reached by it are perverse, that is, when the finding reached is wholly without any supporting evidence or wholly against the evidence. The proceedings of a SFC are not to be compared with the proceedings of a trial, in the ordinary criminal courts, under the Code of Criminal Procedure. A SFC remains, to a great degree, an integral and specialized part of the overall mechanism by which discipline is maintained in a 'force ', such as, BSF. It is for the special needs of such a 'force' that instead of ordinary criminal court, the offenders are tried by SFC even when the offence is punishable by Indian Penal Code. At the same time, what cannot be ignored is that a SFC functions as a Court to which the provisions of the Evidence Act are applicable. The concept of relevance of admissibility of evidence, the burden of proof, and the standard of proof, as envisaged in the Evidence Act, are applicable, without exception, to the trial of an accused by SFC. Viewed thus, it is clear that a SFC has the same responsibility, as any other criminal court, to protect the rights of an accused arraigned before it and, therefore, follow the procedural safeguards given to an accused in order to ensure that he has a fair trial."

 

It was also held in this case (Director General, Border Security Force vs. Iboton Singh (KL) (supra)) that normally an accused person being tried has to be informed of the offence for which he is charged with and it is to be ensured that he clearly understands the nature of the offence for which he is being tried; the case against him be fully and fairly explained to him and the accused be afforded effective opportunity to defend himself providing for substantial compliance with the outward fairness of the law. Mere mistake in procedure and mere consequential arrears of omissions in the trial are recorded as penal by the code and the trial is not vitiated unless the accused can show substantial prejudice caused to him. Amongst the procedural laws on this subject, disregard of several provisions is considered vital.

 

A solemn duty is cast on the Summary Security Force Court to ensure that the valuable rights of an accused person who is charged with an offence which may result in serious consequences are adequately protected.

 

 

IMPORTANT HEADNOTES

 

Pankaj Negi vs Union Of India & Anr. [WP 1798 of 2000, decided on 9^th July, 2012] – DHC [DB] – Allegations of cattle trespass at BOP – Held, the petitioner did not object or raise objections regarding non compliance of the mandatory requirement of Rule 45B. The petitioner rather cross examined the witnesses during ROE and also deposed in support of his contentions but did not raise any objection about non compliance of Rule 45B. The plea of the learned counsel for the petitioner that the petitioner is not literate and did not know the intricacies of the rules cannot be accepted in the facts and circumstances. The plea regarding non compliance of Rule 45B was also not categorically raised by the petitioner before the Summary Security Force Court and, therefore, the plea of the petitioner that since Rule 45B of the BSF Rules was not strictly complied with, therefore, the findings of the Summary Security Force Court will be vitiated cannot be accepted - As far as the sufficiency of the evidence before the Summary Security Force Court is concerned, this Court in judicial review of the decision of SSFC Court will not take over the function of SSFC Court as the writ petition is not an appeal against the findings of SSFC nor can this Court exercise or assume the role of the appellate authority. It cannot differ with the findings of the fact arrived at by the SSFC except in the cases of malafides or perversity i.e. where there is no evidence at all to support the finding or where the finding is such that anyone acting reasonably or with objectivity could not have arrived at the same or where a reasonable opportunity has not been given to the accused to defend himself or it is a case where there has been non application of mind on the part of Summary Security Force Court. In the present case, there was evidence before the Summary Security Force Court, however, the sufficiency of evidence is not to be assessed by this Court. The grounds on which the decision of the SSFC can be interfered by judicial review are "illegality", "irrationality" and "procedural impropriety". As far as procedural impropriety is concerned, it has already been held that on the grounds raised by the petitioner, this Court cannot interfere. As far as illegality or irregularity is concerned, the learned counsel for the petitioner has failed to make out any such illegality or irregularity which shall entail any interference by this Court. The learned counsel for the petitioner has rather tried to emphasize that the evidence of the witnesses cannot be relied on as from a distance it could not be asserted whether the cattle were bulls or cows. Such pleas as has been raised by the learned counsel for the petitioner are not sufficient to conclude that the SSFC had left out relevant factors or had taken into account irrelevant factors. In any case, it was for the petitioner to have put such questions, as has been raised by the counsel for the petitioner now, that from a distance it could not even be ascertained whether the cattle which had crossed the gate were bulls or cows, to the witnesses who had appeared in the ROE and thereafter in the Summary Security Force Court. This Court as has already held that it will not re- appreciate the evidence on the basis of the assumptions raised by the learned counsel for the petitioner – The DB of the DHC however felt that the punishment was excessive and disproportionate. On the aspect of punishment it held that - With regard to the petitioner‟s plea of disproportionate punishment imposed on him, on carefully examining the record it is clear that the charge framed against the petitioner is only of not detecting 16 bulls crossing over to Bangladesh from India. Also it is evident that even though the superior authority, Inspector Murari Singh, who has deposed against the petitioner had detected the cattle crossing the border over to Bangladesh, however, he too was unsuccessful in retrieving the cattle. Moreover, there is nothing on the record to establish that the petitioner was involved with any smugglers or that he had accepted any illegal gratification for allowing the cattle to cross over the international border or that he deliberately allowed the cattle to cross over the border, nor is this the charge framed against him. In the circumstances, the allegations proved against the petitioner does not warrant such an extreme punishment of dismissal from service which has been imposed on him. Even if there was failure on his part to detect the cattle cross over the International Border, this will not reflect extreme negligence or dereliction of duty by him. It can hardly be disputed that the punishment of dismissal from service is the severest punishment that could be imposed upon an employee. For imposition of such punishment, it should be necessary that the charge is proved and the conduct of the employee is such that it would invite imposition of such a harsh punishment. It is not possible to evolve a straight-jacket formula to determine the excessiveness or otherwise of the punishment awarded, however, in the present case it is clear that the punishment is so strikingly disproportionate, that it demands judicial interference. The Apex Court has, however, repeatedly held that the imposition of punishment is primarily the job of the Disciplinary Authority and in normal circumstances even if the Tribunal or the Court comes to a finding that the punishment imposed on a delinquent in a given case is excessively harsh, disproportionate to the proved misconduct or is one which shocks the conscience of the Court, it may after setting aside the said punishment, remand back the matter to the Tribunal or to the Disciplinary Authority for the imposition of punishment afresh. Thus, the appropriate course of action would be to remand the matter to the respondent authorities, in order to reconsider the quantum of punishment imposed on the petitioner – writ petition allowed in part – sentence modified.

 

 

Rajinder Singh Hundal vs. Union of India & Ors. [WP 8572 of 2020 decided on 1 july, 2020] – [P&H HC, Single Judge] – Writ challenging transfer – allegation of violation of violation of the Border Security Force (Tenure of Posting and Deputation) Rules, 2000 – Petitioner alleged family exigency – UOI refused any violation – transfer as per rules - posting to static formation shall be for a period of three years only and thereafter the member of the force is to be reverted back to his present Battalion and no person from one static formation shall be posted to another static formation immediately after completion of one tenure. – THE COURT HELD THAT - The petitioner a member of CAPF has been unable to point out any element of mala-fide in his transfer, which comes out to be for administrative reason. The transfer is an incidence of service and cannot be taken to be an act of punishment. It is for an employer to see where he requires services of the employee and an employee especially member of a paramilitary force supposed to maintain strict discipline cannot dictate terms in that regard keeping his personal interest in view rather than showing willingness to serve, where he is posted, especially at this juncture when the country is facing hostilities by the neighbouring countries at border. The instructions/guidelines relied upon by the petitioner do not come to his rescue since those are for administrative convenience and cannot be taken to have statutory force. His conduct of not asking for terminal posting when options for transfer were taken travels against his case. It seems that the petitioner wants to avoid going away from Chandigarh. The family circumstances explained by him are not that compelling requiring his immediate presence with the family for most of the time – writ petition dismissed.

 

Balwinder Singh vs. Union of India & Ors. [WP 7875 of 2007, decided on 3 June 2010] – [DHC - DB] – Held, petitioner has been denied a reasonable facility to make his defence by not providing a proper friend of the accused who is statutorily mandated under rule 157 as the officer recording the ROE was appointed as the Friend – Writ allowed, Order Set Aside.

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