A INBAM CONSTABLE Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant as writ petitioner had assailed the legality and validity of the proceedings relating to his arrest, investigation and trial by the General Security Force Court (hereinafter referred to as the 'Court') culminating in the sentence of imprisonment for life and dismissal from service. His challenge having been negatived by the learned Single Judge, he has preferred this appeal.

(2.) We have heard Mr. T. C.Khetri, learned counsel for the appellant and Mr. G.P. Bhowmick, learned Additional C.G.S.C. for the Respondents.

(3.) The factual matrix relating to the controversy has to be presented to comprehend the issues involved. The case of the appellant as narrated in the writ petition be noticed first. The appellant, at the relevant time, was a constable in the 193 Battalion of the Border Security Force(hereinafter referred to as the 'Force') on 10.5.93 when his Battalion was posted at Baramulla(Kashmir), he was arrested on the allegation of committing murder of his colleague and room-mate Lance Nayak B.L. Reang. According to him, at the time of his arrest, he was not furnished with any document and was also not informed in writing about the particulars of the charge against him as required under Rule 40 of the Border Security Force Rules, 1968(hereinafter referred to as the 'Rules'). He has asserted that neither the charge nor any witness in support thereof was heard by the Commandant of the Battalion as required under Rule 45 of the Rules, before remanding him for recording of evidence. Eventually, he was tried by the 'Court'. He was charged under Section 46 of the Border Security Force Act, 1968(hereinafter referred to as the 'Act') for having committed a civil offence under Section 302 IPC. At the trial, the appellant was represented by a Defending Officer but as he was not informed by his Defending Officer about the vitiating effect of the non- compliance of Rule 40 and 45 on the proceeding and therefore at the relevant time, he could not raise the plea with regard to the jurisdiction of the court as permissible under Rule 72 of the Rules. In all, 21 witnesses were examined in support of the charge. Though he submitted his written statement, he did not examine any witness in defence. At the conclusion of the trial and on completion of the prescribed formalities, the court on 8.9.95 declared him guilty of the charge and after considering his submissions with regard to the sentence, ordered him to suffer R.I. for life and further dismissed him from service. Thereafter the finding and sentence of the Court were confirmed by the convening and confirming authority and the appellant was sent to Civil Jail in terms thereof. The appellant thereafter submitted a post confirmation representation before the appropriate authorities which was however rejected and the decision was communicated to him by letter dated 9.12.96(Annexure F to the writ petition). According to the appellant, his arrest and detention in force custody was illegal and in contravention of Rule 40 of the Rules. Further, the trial before the court was illegal and void ab initio due to the failure to comply with the mandatory requirements of Rules 45 of the Rules. He challenged the findings and sentence of the Court also on the ground that the same were manifestly erroneous, inasmuch as, the charge against him had not been proved. He also assailed the order of rejection of his post confirmation representation as mechanical without any application of mind.