JOSHI, J. - (1.) THIS is a petition under Article 226 of the Constitution of India for issue of writ of Habeas Corpus and for issue of writ in the nature of Certiorari for quashing or setting aside the order of conviction and sentence dated 13-9-1977 passed by the General Security Force Court (hereinafter referred to as 'the Court' ). At present the petitioner is undergoing sentence in the Central Jail, Jodhpur.
(2.) THE material facts may briefly be stated as follows : The petitioner was a Sub-Inspector (Clerk) in 13 BN, B. S. F. No. 671870641 attached with S. T. C. Jodhpur in the year 1975 and was working as Accountant-cum-Cashier in that year. The petitioner was prosecuted for misappropriating property under sec. 30 of the Border Security Force Act, 1968 (47 of 1968) hereinafter referred to as 'the Act'), during the year 1975-76. He was convicted by the General Security Force Court and sentenced to suffer rigorous imprisonment for two years. It was further ordered that the petitioner was to be dismissed from the service and to forfeit all arrears of pay and allowances and other public money due to him, vide the Court's order dated 13-9-1977. The Inspector-General, Border Security Force (R & G), Jodhpur, vide his order dated 18-10-1977. confirmed the finding and sentence of the Court. The Court was convened by an order of the Inspector-General, Border Security Force (R & G), Jodhpur, dated 4-8-1977 and according to this order the Court was to assemble at Jodhpur for trying the petitioner on 17-8-1977 and the Court assembled at Jodhpur on 17-8-1977. The Court after trial convicted and sentenced the petitioner as stated above and the said sentence was ultimately confirmed. The petitioner further averred that on 10-9-1977, he filed a written statement in his defence marked as Ex. MMM at the trial. In the last but one para of this statement, he made submissions to the effect that for the last about 17 months he is in close arrest and all his efforts to meet the Director-General and represent his case have been nullified by the Head-quarters, I. G. , B. S. F. (R & G), Jodhpur. Time and again he requested that a court of inquiry may be convened so that thorough enquiries are made into all bunglings going on in the office, but his requests had always been denied and time and again the oral representations to constitute a court of inquiry, which is a condition precedent to the holding of a trial, made by him were also ignored. The Law Officer in summing up the case on 13-9-1977 did not even advert to the representations of the petitioner that a court of inquiry must precede the trial of the petitioner. The petitioner submitted a pre-confirmation appeal for the revision of the sentence awarded by the Court, but the same was rejected and information thereof was conveyed to the petitioner through letter dated 29-10-1977. This letter was annexed with the copy of letter No. D. IX-110/77 (R & G)/24343-44 dated 24-10-1977 from the Head-quarters Inspector General, Border Security Force (R & G), Jodhpur, addressed to the Deputy Inspector General, Border Security Force, Jodhpur, purported to be signed on behalf of the Inspector General, Border Security Force, Jodhpur. Thereafter the petitioner was dismissed from service with effect from 13-9-1977 by the Deputy Commandant, Border Security Force S. T. C. , Jodhpur, vide his order No. D. V. 2/stc/16193 dated 8-11-1977. The petitioner thereafter made representation to the Director General, Border Security Force, New Delhi, dated 25-10-77, but the petitioner was informed vide letter No. 3/408/76-CLO/bsf dated 23-11-1977 of the Government of India, Ministry of Home Affairs, Director-General, Border Security Force, New Delhi that his petition dated 25-10-1977 was rejected by the Director-General being devoid of merits. The petitioner has challenged his conviction and sentence inter alia on the grounds stated in para 14 of the writ petition, but during the arguments of the writ petition, the challenge to conviction and sentence was confined to the following two grounds only : (1) That the findings and sentence of the Court were not confirmed according to section 107 and 108 of the Act and there being violation of these provisions, the findings and sentence of the Court are invalid. The findings and the sentence could either be confirmed by the Central Government or by an officer empowered in this behalf by a warrant of the Central Government. The respondent's stand that I. G. , B. S. F. (R & G) holds the warrant to confirm the findings and sentence of the Court Ex. R/2, which purports to be a warrant issued by the order of the Central Government and purports to be signed by a Secretary in the Ministry of Home Affairs is not tenable in law as the authority under the document Ex. R/2 was neither expressed to be given by the President nor the power to confirm the findings of the Court was properly authenticated and even the Secretary had no power to authenticate Ex. R/2. The said order, therefore, does not comply with the requirements of Art. 77 of the Constitution and so it cannot be said that the power of confirmation of the findings and sentence of the Court had been legally and properly delegated to the Inspector General, Border Security Force (R. & G. ). (2) That the provision of sub-rule (2) of rule 174 of the Border Security Force Rules, 1969 (hereinafter referred to as 'the Rules') is mandatory and under sub-rule (2) with regard to all financial irregularities, losses, theft and misappropriation of public or force property the holding of a court of inquiry was a necessary and indispensable preliminary and a condition precedent to the convening of the General Security Force Court. The trial of the petitioner without complying with this mandatory provision was absolutely illegal, void, ultra vires and without jurisdiction. On these two grounds the validity of the order of the Court and the confirmation thereof by the Inspector General, Border Security Force, have been challenged and it was prayed that the order of sentence of imprisonment be set aside or quashed and the petitioner be set at liberty forthwith. The respondents submitted their return to the amended writ petition in which it was stated that the petitioner was charged for misappropriating Government money under section 30 (b) of the Act. Besides this, there was a seventh charge against the petitioner under section 40 of the Act in respect of unauthorised possession of the keys of the Treasury Chest of the Head-quarters Inspector General, Border Security Force, Rajasthan and Gujarat. The Court after trial found the petitioner guilty of all the charges except fourth and sixth and it was stated that under the provisions of the Act and the Rules made thereunder, it was not essential to assemble a Court of Inquiry before the trial of an accused. A record of evidence was ordered against the petitioner under rule 45 of the Rules. The record of evidence was prepared in accordance with rule 48 of the Rules and the charge was heard under rule 51. The respondents refuted the contention of the petitioner that Court of inquiry is a condition precedent for the holding of a trial. The petitioner is subject to the Act and action could be taken against him under the Act and the Rules. The Law Officer did not comment upon the request of the petitioner about holding of a court of inquiry as it was not a condition precedent to the trial of an accused as holding of a court of inquiry for administrative purposes in certain cases had been made essential under the provisions of rule 174 (2) of the Rules. In clause (c) of the said Rules a Court of inquiry is required to be held in all cases of financial irregularities etc. Such an inquiry is held only to establish the nature and the extent of irregularity and the identity of persons responsible therefor. In this case there was hardly any doubt with respect to either of the grounds and it would have been a sheer waste of time and would have resulted in unnecessarily delay in the trial of the petitioner. As regards the other ground on which the findings and the sentence have been challenged, it was stated that the findings and sentence were duly confirmed by the Inspector General, B. S. F. (R & G) as he was empowered by the Central Govt. under the warrant issued by it, and thus, the competent authority has confirmed the findings and sentence of the Court in accordance with the provisions contained in sections 107 and 108 of the Act. The findings and sentences of the General Security Force Courts, under Sec 108 of the Act, can be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. The Central Government has empowered by warrant the Inspector General, B. S. F. , to confirm the findings and the sentence of the Court. It was also stated that the warrant was duly authenticated, and the said warrant cannot be called in question, as it is in conformity with the Art. 77 of the Constitution and in no way invalid.
(3.) IT was further stated in the reply that there is no contravention of any of the provisions of law. The detention of the petitioner as a result of the conviction and sentence, is legal and in such circumstances the petitioner is not entitled to invoke the extraordinary original jurisdiction and so the petition is not maintainable. In the alternative it was pleaded that even if there are any irregularities and illegalities in the trial of the petit;oner they cannot be looked in to in the proceedings relating to Habeas Corpus and the writ of Habeas Corpus does not lie for questioning the validity of such conviction as the petitioner has been convicted and sentenced under the provisions of the Act and Rules and the conviction and sentence have been confirmed by the competent authority and the proceedings of the court are not open to scrutiny in the petition under Article 226 of the Constitution. We have heard the learned counsel for the petitioner and the learned counsel for the Union of India at length. We now proceed to consider the arguments advanced before us. On behalf of the petitioner first of all it was vehemently contended that the findings and sentence of the court have not been validly confirmed inasmuch as the Inspector General, B. S. F. (R&g) was not empowered in conformity with the provisions contained in Art. 77 of the Constitution. The power of confirmation ought to have been expressed in the name of the President and further the order made and executed in the name of the President ought to have been authenticated in such manner as may be specified in the Rules made by the President. The learned counsel submitted that the document Ex. R/2 does not satisfy the requirements of Art. 77, as it is not expressed in the name of the President nor it has been signed by the Secretary by order of the President. According to the learned counsel such a document is not immune from challenge as it does not satisfy the requirements of Art. 77. His submission is that some sort of evidence could have been led to satisfy the court that compliance of Art. 77 had been made. Mere production of the copy of the document Ex. R/2 without being supported by any evidence in the form of affidavit or otherwise is insufficient to satisfy the requirements of Art. 77. The learned counsel submitted that it was all the more necessary to adduce some evidence in any form when strict compliance of Art. 77 was not made and where strict compliance has not been made, some evidence aliunde was a must, without which it should be held that Art. 77 has been violated and the delegation of power of confirmation to the Inspector General, B. S. F. (R&g) through document Ex. R/2 is not valid. The learned counsel referred to some decisions to show that where strict compliance of Art. 77 was not made and evidence has been led in some form or the other to prove that compliance of Art. 77 has been made, though he concedes that the provisions of Art. 77 are only directory and not mandatory, and where the order itself does not satisfy the requirements of Art. 77, the deficiency can be made good by production of some evidence. ;