TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 1530
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....tion, as set out in the order, was as follows: "DISGRACEFUL CONDUCT OF AN UNNATURAL KIND In that he, between 0200 Hrs to 0600 Hrs on 16.04.2006 while on Naka duty under BOP Sahab Khan committed sodomy on the person of No. [xyz] Const [xyz] of the sam(e) Battalion." 3 The incident in question is alleged to have taken place on the night intervening 16 and 17 April 2006. The complainant, a Constable in the BSF, was on Naka duty between 02:00 to 06:00 hours when the respondent is alleged to have committed an act of sexual assault on him. The complainant submitted a written complaint on 19 April 2006. Under the BSF Act 1968, such conduct is liable to be prosecuted under Section 24(a) which reads as follows: " "24. Certain forms of disgraceful conduct.-Any person subject to this Act who commits any of the following offences, that is to say,- (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or [...] shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned." 4 The RoE was prepared b....
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....on as it or he thinks fit." of the BSF Act 1968 before the Director-General of the BSF to challenge the conviction recorded by the SSFC on 7 August 2006. The statutory petition was heard by the appellate authority - the Director-General of BSF and was disposed of by an order dated 18 October 2006. While the charge against the respondent was found to have been established, the punishment of reduction to the rank of Constable was commuted, having regard to the fact that the respondent had over 22 years of unblemished service with 21 rewards to his credit. The respondent was informed that the Director-General of the BSF had commuted the sentence of reduction to the rank of Constable by substituting it with the following: "(i) 'To forfeit 05 years services for the purpose of promotion'; (ii) 'To forfeit 07 years past service for the purpose of pension'; and (iii) 'To be severely reprimanded." 7 The respondent moved the High Court at Calcutta under Article 226 of the Constitution. A Single Judge of the High Court, by an order dated 7 May 2009, set aside the order of punishment on the ground that: (i) The original RoE was insufficient to prove the c....
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....Court that the Commandant did not possess the authority to order the recording of additional evidence and that he had usurped the power of the superior authority under Rule 59, is perverse; and (viii) Neither the provisions of Rule 149 nor those of Section 117(2) require the SSFC or the Director-General to give reasons in support of their decision. This principle is settled by the judgment of this Court in Union of India v. Dinesh Kumar "(2010) 3 SCC 161". 10 On the other hand, Mr Rabin Majumder appearing on behalf of the respondent has urged the following submissions: (i) Rule 6 of the BSF Rules 1969 applies only to a matter which is not specifically provided in the Rules. On the contrary, Rule 51 specifically enunciates the power of the Commandant. In the absence of specific conferment of power to order the preparation of an additional RoE at the material time, the Commandant had no power to do so; (ii) The power to record further evidence is conferred only on a superior authority convening a Court under Rule 59; (iii) Where a Commandant decides under Rule 51(2)(iv) to apply to a competent officer to convene a court for the trial of a person....
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....iction to direct the preparation of an additional RoE; and secondly, whether the finding of guilt which has been recorded by the SSFC stands vitiated in the absence of reasons. Now, before we analyse the first of the above two facets, it becomes necessary to understand the circumstances in which the Commandant directed the Assistant Commandant to prepare an additional RoE on 10 June 2006. 13 On 2 May 2006, the Deputy Commandant of the Seventy-second Battalion was detailed to prepare a RoE on the allegation that the respondent had committed an offence under Section 24(a) of the BSF Act 1968. The allegation was that when he was on Naka duty from 02:00 hours to 06:00 hours on 16 April 2006, the respondent had committed an act of sexual assault on a Constable. In the course of preparing the RoE, the complainant, examined as PW1, reported that: "I joined 72 BN BSF on 19 Feb 2006 and further posted to B-Coy of Unit B-Coy is deployed in Sahebkhale Sub-Sector. I went to BOP Sahebkhali on 03 April 06 and afterward had been performing duty in BOP Sahebkhali. I was on Naka/Patrolling duty from 0200 Hrs to 0600 Hrs on 16 April 06 alongwith No. 84001083 HC Mudrika Singh. At 0400 Hrs....
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....that the additional RoE which was ordered by the Commandant was essentially in the nature of a clarification having regard to the discrepancy about the date of the incident namely, whether it was on 16 or 17 April 2006. This was evidently because the incident took place on the intervening night of 16 and 17 April. As noted above, the respondent himself has in the course of his statutory petition, sought to highlight the events which had transpired in the early hours of 17 April 2006 when he was on duty. After settling the issue of insufficiency of evidence, we advert to the two questions of law that have been raised in the appeal: (i) whether the Commandant has the jurisdiction to direct preparation of an additional RoE; and (ii) whether the SSFC is under an obligation to record reasons under Rule 159 of the BSF Rules 1969 when it determines the guilt of an accused. C.1 Jurisdiction of the Commandant 16 The unamended Rule 51 of the BSF Rules 1969 provided as follows: "51. Disposal of case against an enrolled person by Commandant after record or abstract of evidence.- (1) Where an officer has been detailed to prepare the record of evidence or to make an abstr....
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.... charge and award summary punishments; or (iii) try the accused by a Summary Security Force Court where he is empowered so to do: Provided that the Commandant while convening a Court may reframe the charge; or (iv) apply to a competent officer or authority to convene a Court for the trial of the accused." 17 The High Court inferred that ―the incorporation of the amendment demonstrates that at the relevant point of time, the Commandant did not have the power to direct additional evidence to be recorded‖. Yet, the High Court also observed that the 2011 amendment to the BSF Rules 1969 could be of a clarificatory nature: "At the same time, the amendment can be regarded to be clarificatory in nature, in the sense that it was not required to be specifically provided but was inherent to the general authority of the Commandant; and the amendment has been brought by way of abundant caution and to clarify the powers of the Commandant instead of conferring any new authority unto such officer." However, the High Court declined to inquire further into this line of interpretation on the ground that "there is no submission which has been put f....
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....not be compelled to attend or is not available or his attendance cannot be procured without an undue expenditure of time or money and after the officer recording the evidence has given a certificate in this behalf, a written statement signed by such witness may be read to the accused and included in the record of evidence. (8) After the recording of evidence is completed the officer recording the evidence shall give a certificate in following form :- "Certified that the record of evidence ordered by... ..Commandant... .....................................................was made in the presence and hearing of the accused and the provisions of rule 48 have been complied with". (emphasis supplied) 19 Rule 48 of the BSF Rules 1969 clarifies that an officer ordering the RoE may either prepare it himself or detail any officer to do so. The witnesses have to give their evidence in the presence of the accused who has a right to cross-examine them. The accused may call witnesses in defence. An officer recording the evidence is empowered under sub-rule (4) of Rule 48 to ask a question that may be necessary to clarify the evidence given by a witness. It is on the basi....
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....under v. Ram Kumar (2001) 8 SCC 24 held that an amending act or a declaratory act need not explicitly mention its declaratory nature to be operative retrospectively. Speaking on behalf of the Constitution Bench, Justice V N Khare (as he then was) noted: "39. Lastly, it was contended on behalf of the appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word "declaration" in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word....
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....e operation S B Bhattacharjee v. S D Majumdar, (2007) 10 SCC 513 (two-judge Bench); O P Lather v. Satish Kumar Kakkar, (2001) 3 SCC 110 (two-judge Bench). In our view, the power to order additional RoE is incidental to realize the purpose of Rules 48 and 51. In any event, residual powers under Rule 6 would protect this action. Since the express power to direct additional RoE under Rule 51 was incidental to the exercise of the existing powers, the amendment to Rule 51 which was brought in 2011 must be construed to be clarificatory. In fact, the High Court proceeded on this line of analysis by observing that the amendment is clarificatory. However, it chose to not take it to its logical conclusion on the tenuous ground that no submission had been put forth by either side to throw light on the relevant provision. 23 In our view, and for the reasons that we have indicated, the fact that the incident took place in the present case prior to the date of the amendment, i.e., 25 November 2011, would make no difference once the amendment, in the true sense of the expression, is construed to be clarificatory in nature. Against this backdrop, the Commandant was acting within his jurisdictio....
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....ial by Security Force Court is inexpedient or not reasonably practicable for the reasons to be recorded in writing; or (v) may, after recording the reasons, dispose of the case administratively under chapter XIV A of these rules if competent to do so, or refer it to the competent authority for disposal, where he is of the opinion that the charge against the officer or the subordinate officer, as the case may be, does not deserve to be dismissed but also not so serious as to warrant trial by a Security Force Court. (2) (a) In any other case he may either himself convene a Court or if he considers that a higher type of Court should be convened and he is not empowered to convene such a Court, forward the case to a higher authority with recommendation that such Court may be convened. (b) The higher authority on receiving the case may exercise any of the powers given in sub-rule (1) of this rule: Provided that a superior officer or higher authority before convening a General Security Force Court or a Petty Security Force Court shall take the advice of the Chief Law Officer or a Law officer. Provided further that the superior authority or high....
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.... on a charge subject to the statement of exceptions or variations specified therein. (5) The Court shall not find the accused guilty on more than one of two or more charges laid in the alternative, even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges." (emphasis supplied) The provisions of Rule 149 of the BSF Rules 1969 came up for interpretation before a two-judge Bench of this Court in Union of India v. Dinesh Kumar (2010) 3 SCC 161, ("Dinesh Kumar"). This Court was considering over sixty-two appeals from members of the BSF on the sole ground that orders of the SSFC were illegal since they did not state the reasons for arriving at their conclusion. Speaking on behalf of this Court, Justice V S Sirpurkar framed the issues for consideration as follows: "3. The common questions that falls for consideration in all these appeals can be stated as under: Whether the Summary Security Force Court (SSFC) is required to give reasons in support of its verdict? Similarly, Whether the appellate authority under Section 117(2) is required to give reasons while considering the correctness, legality ....
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....ties of the SSFC were not required to give reasons in support of their findings in all these cases and the High Court has gravely erred in setting aside the orders of authorities on that count alone." (emphasis supplied) While arriving at the above conclusion in Dinesh Kumar (supra), the Court also placed reliance on the decision of a Constitution Bench in S N Mukherjee v. Union of India (1990) 4 SCC 594 ("S N Mukherjee"). 26 The Constitution Bench in S N Mukherjee (supra) had affirmed and followed the decision of a Constitution Bench of this Court in Som Datt Datta v. Union of India AIR 1969 SC 414 ("Som Datt Datta") which had considered the duty of furnishing reasons on the Chief of Army Staff and the Union Government when confirming the proceedings of a Court-martial under the Army Act, 1950. The Court, in Som Datt Datta (supra), held that the requirement of furnishing reasons does not apply in every case concerning a finding by a statutory tribunal. Justice V Ramaswami (I), speaking on behalf of the Constitution Bench, held: "9. In the present case it is manifest that there is no express obligation imposed by Section 164 or by Section 165 of the Army Act on th....
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....ss significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms su....
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.... provisions referred to above it is evident that the judge-advocate plays an important role during the course of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its findings after the judge-advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of "guilty" or of "not guilty". It is also required that the sentence should be announced forthwith in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make a specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and senten....
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....dings of guilt on a case referred to it. D Conclusion 30 In the above circumstances, the High Court was in error on both the grounds which have weighed in its ultimate decision. There was no error of jurisdiction on the part of the Commandant in seeking clarification in regard to the date of the incident by calling for an additional RoE. As we have noted, the respondent was not prejudiced since he understood the allegations against him as pertaining to the events which transpired on the night when he was on duty, intervening 16 and 17 April 2006, and more specifically in the early hours of 17 April 2006. 31 On the second aspect, the decision of the High Court has failed to notice the judgment of this Court in Dinesh Kumar (supra) [which in turn is based on paragraph 40 of the principles enunciated by the Constitution Bench in S N Mukherjee (supra)]. The charge against the respondent was found to have been duly substantiated by evidence on the record. While dealing with the respondent's statutory petition under Section 117, the Director-General of BSF, reduced the quantum of sentence. He was empowered to do so in accordance with the provisions of Section 48 of the BSF Act 1....