Decided on February 24,2006

Nawab Khan, Sub [No 870021695] Appellant
UNION OF INDIA Respondents


J.P.SINGH, J. - (1.) CONVICTED for an offence under Section 13(1)(e) of Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act and sentenced to dismissal from service, and rigorous imprisonment for one year, Subedar Nawab Khan of 5th Battalion, Border Security Force, approached this Court in SWP No.482/2000 but remained unsuccessful. He has approached this Court again in original side appeal (LPASW No.02/2006) questioning the judgment of the writ Court, his conviction and sentence, on a short ground, that his trial by the General Security Force Court is vitiated because of flagrant violation of Border Security Force Act and Border Security Force Rules, hereinafter referred as Act and Rules respectively.
(2.) MRS . Surinder Kour, learned counsel for the appellant, submits that appellant was denied opportunity of hearing and producing evidence by the Commandant before directing his trial by the General Security Force Court on a charge under Section 13(1)(e) of the Prevention of Corruption Act, 1988. According to the learned counsel, opportunity of hearing including leading of evidence provided by the Commandant to the appellant on a different charge alleging infraction of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, would not constitute hearing and providing opportunity of leading evidence as contemplated by Rule 45(b) of the Rules, which asserts the learned counsel, are mandatory in nature, infraction whereof would render the subsequent trial by the General Security Force Court, illegal. She refers to 'Union of India and others V/s Dev Singh reported as Military Law Journal 2003 SC 146; 'Union of India and others V/s B. N. Jha reported as 2003 AIR SCW 1863; and 'G. S Sandhu V/s Union of India reported as 2001 (4) SCT 860.
(3.) SH . Ajay Sharma, learned counsel appearing for the Union, submits that the trial conducted by the General Security Force Court is in accordance with law and no such prejudice has been caused to the appellant, which may entail quashing of the trial and findings of the General Security Force Court. Sh. Sharma submits that appellant had been provided opportunity, as contemplated by the Rules, to urge if there was any violation of the Rules, preceding the commencement of the trial, but he had not availed of the opportunity and proceeded to take the trial whereafter he cannot be heard to complain of any prejudice. Learned counsel further submits that no opportunity of hearing or leading the evidence is contemplated by the Rules when the basic allegations remain the same and there is only change in the description and nomenclature of the offence on which the competent authority decides to hold the trial of an accused on an offence falling in the definition of the offence other than the one on which the ROE is ordered. Learned counsel refers to 'Flying Officer S. Sundarajan V/s Union of India and others reported as AIR 1970 Delhi 29; 'Union of India and others V/s Major A. Hussain (IC -14827) reported as (1998) 1 Supreme Court Cases 537; 'Union of India and others V/s Naik Subedar Baleshwar Ram and others reported as AIR 1990 Supreme Court 65; and 'Major G. S. Sodhi V/s Union of India and Lt. Col. S. Duggal V/s The Chief of Army Staff reported as AIR 1991 Supreme Court 1617. Sh Sharma placed the records of the General Security Force Court proceedings as also the records of the competent authority for perusal. We have considered the submissions of learned counsel for the parties, judgment of the writ Court and gone through the proceedings of the competent authority and the General Security Force Court.;

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