Union Of India & Anr vs Dinesh Kumar

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL No. 1208 OF 2010 (Arising out of SLP (C) No.26717 of 2005)

Union of India & Anr. .... Appellants

Versus

Dinesh Kumar .... Respondent

WITH

Civil Appeal Nos. 1209-1210 of 2010 @ SLP (C) Nos. 11776, 11777 of 2006, Civil Appeal Nos. 1212-1215 of 2010 @ SLP(C) Nos. 11779, 11780, 11783, 9252 of 2006, Civil Appeal No. 1217 of 2010 @ SLP(C) No. 13692 of 2006, Civil Appeal No. 1219 of 2010 @ SLP(C) No. 13694 of 2006, Civil Appeal Nos. 1221-1235 of 2010 @ SLP(C) Nos. 13696, 13697, 13698, 13699, 13700, 13701, 13702, 13705, 13703, 13706, 13707, 11341, 14430, 14431, 14432 of 2006, Civil Appeal Nos. 1237-1247 of 2010 @ SLP(C) Nos. 14435, 14436, 14438, 14439, 14441, 14442, 14443, 14444, 14445, 14447, 14448 of 2006, Civil Appeal Nos. 1249-1253 of 2010 @ SLP(C) Nos. 14450, 14451, 14918, 14919, 14921 of 2006, Civil Appeal Nos. 1255- 1259 of 2010 @ SLP(C) Nos. 14923, 14924, 14301, 16041, 16042 of 2006, Civil Appeal Nos. 1261-1265 of 2010 @ SLP(C) Nos. 16044, 16046, 16047, 16048, 16051 of 2006, Civil Appeal Nos. 1267-1271 of 2010 @ SLP(C) Nos. 15544, 15545, 16549, 16550, 16552 of 2006, Civil Appeal Nos. 1274-1275 of 2010 @ SLP(C) Nos. 17633, 17636 of 2006, Civil Appeal No. 1277 of 2010 @ SLP(C) No. 18524 of 2006, Civil Appeal Nos. 1279-1282 of 2010 @ SLP(C) Nos. 19469, 19470, 21075, 21072 of 2006. 2

JUDGMENT

V.S. SIRPURKAR, J.

1. This judgment will dispose of 62 Civil Appeals mentioned above.

2. We had, by earlier orders, directed the remand of all these matters

to the High Court and now we proceed to give reasons in support of our

orders.

3. All these appeals have been filed by the Union of India. The main

contesting respondents in all these appeals are the members of the Border

Security Force. The respondents in all the matters succeeded before the

High Court, which took the view that the orders passed against them by

the Summary Security Force Court (hereinafter referred to as `SSFC' for

short) and the appellate authority were bad and illegal, as there were no

reasons given by any of these authorities.

4. On that count, the High Court directed remand in all the matters to

the appellate authority under Section 117 (2) of The Border Security Force

Act, 1968 (hereinafter referred to as `the Act' for short) for rewriting the

order, giving reasons in support of the conclusions reached by the same.

The lead judgment was passed on 16.1.2006 in Writ Petition (Civil) No.

9427 of 2005 filed by one Constable Hans Raj. Relying on that judgment,

all the other Writ Petitions in the above appeals before us were directed to 3

be disposed of. The Union of India has now challenged the lead judgment,

as well as other judgments, which were passed relying upon the same.

5. The common question 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 or propriety of the order passed?

6. It is a common ground that in all these appeals, no reasons were

given by either the SSFC or by the authority under Section 117 of the Act,

which acts as an appellate authority.

7. Before we approach this question, it must be stated in all fairness

that majority of the Learned Counsel appearing on behalf of the

respondents, agreed to have the judgment in their favour set aside,

provided the matter is remanded back to the High Court for deciding the

Writ Petitions on merits. This was obviously because in all these matters,

the merits of the Writ Petition were not considered and all the Writ Petitions

were allowed for the sole reason that the appellate authority or the SSFC

had not recorded any reason in support of the verdict given by them. In 4

fact, Shri P.P. Malhotra, Learned ASG also fairly conceded that the Writ

Petitions were not decided on merits by the High Court and they were

allowed on the preliminary ground that no reasons were given by the

authorities under the Act. There were very little or almost no arguments

led on behalf of the respondents supporting the order. However, in order

to put the record straight and before acting on the request, we must

consider the arguments led by the Learned ASG, who contended that

there is no requirement of giving any reasons either by the SSFC or by the

appellate authority under Section 117 of the Act.

8. Under the scheme of The Border Security Force Act, there are three

kinds of Security Force Courts. Section 64 of the Act provides for those

three kinds, they being (a) General Security Force Courts; (b) Petty

Security Force Courts; and (c) Summary Security Force Courts. We are

concerned here only with Summary Security Force Courts (SSFC).

Section 70 provides that a SSFC may be held by the Commandant of any

unit of the Force and he alone shall constitute the Court. Sub-Section (2)

of Section 70 suggests that the proceedings shall be attended throughout

by two other persons who shall be officers or subordinate officers or one of

either, and who shall not as such, be sworn or affirmed. Section 74

speaks about the powers of a SSFC. Sub-Section (1) thereof provides that

the SSFC may try any offence punishable under the Act, subject to the 5

provisions of Sub-Section (2). Sub-Section (2) provides that when there is

no grave reason for immediate action and reference can without detriment

to discipline be made to the officer empowered to convene a Petty Security

Force Court for the trial of the alleged offender, an officer holding a

Summary Security Force Court shall not try without such reference any

offence punishable under any of the Sections 14, 17 and 46 of this Act, or

any offence against the officer holding the Court. Sub-Section (3) provides

that the SSFC could try any person, subject to the Act and under the

command of the officer holding the Court, except an officer or a

subordinate officer. Sub-Section (4) controls the power of granting

sentence and suggests that the SSFC may pass any sentence except the

sentence of death or imprisonment for a term exceeding the limit specified

in sub-Section (5). Sub-Section (5) provides the limit referred to under

sub-Section (4) as under:-

(a) one year, if the officer holding the Security Force Court has

held either the post of Superintendent of Police or a post

declared by the Central Government by notification to be

equivalent thereto, for a period of not less than three years or

holds a post of higher rank than either of the said posts; and

(b) three months, in any other case.

6

It is, therefore, clear that the SSFC can try all the offences, however,

has limited powers in respect of the sentence which also depends upon

the rank of the officer holding the SSFC. The offences under the Act are

as mentioned in Chapter III while Chapter IV deals with the punishments.

Section 117 of the Act provides for remedy against order, finding or

sentence of Security Force Court, which could include the SSFC also.

Under sub-Section (1) thereof, a petition could be filed by the aggrieved

person before such person, officer or authority, who is empowered to

confirm any finding or sentence of the SSFC and such officer or the

authority has to specify himself/itself as to the correctness, legality or

propriety of the order passed or as to the regularity of any proceeding to

which the order relates. Sub-Section (2) thereof provides that any finding

or sentence of the SSFC, which has been confirmed, could be challenged

by the aggrieved person before the Central Government, the Director

General or any prescribed officer, who is superior in command to one who

confirms the finding and sentence, and such appellate authority like the

Central Government, the Director General or the prescribed officer may

pass such order thereon, as it/he thinks fit. Section 141 of the Act provides

for the power to make rules, under which the Central Government may

make rules for the purpose of carrying into effect the provisions of the Act.

Such rules have been framed, they being Border Security Force Rules, 7

1969. Chapter XI of the said Rules deals with the proceedings before

SSFC. Rule 148 runs as under:-

148. Verdict: The Court shall after the evidence for prosecution and defence has been heard, give its opinion as to whether the accused is guilty or not guilty of the charge or charges.

Rule 149 is the most important Rule, on which Shri Malhotra,

Learned ASG has heavily relied upon. The Rule is as under:-

149. Finding:

(1) The finding on every charge upon which the accused is arraigned shall be recorded and except as mentioned in these rules shall be recorded simply as a finding of "Guilty" or of "Not Guilty".

(2) When the Court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the Court shall find the accused "Not Guilty" of that charge.

(3) When the Court is of opinion as regards any charge that the facts found to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his 8

defence, it may, instead of finding of "Not Guilty" record a special finding.

(4) The special finding may find the accused guilty 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.

It is important to note at this juncture that in the same Rules, Chapter

IX deals with the procedure for Security Force Courts. Rule 99, which is

included in Chapter IX, is of importance for the decision in these appeals.

Before its amendment in the year 2003, the Rule was as under:-

99. Record and announcement of finding:-

(1) The finding on every charge upon which the accused is arraigned shall be recorded and except as provided in these rules, shall be recorded simply as a finding of "Guilty" or of "Not Guilty".

(2) Where the Court is of opinion as regards any charge that the facts proved do not disclose the offence, charge or any offence of which he might under the Act legally be found guilty on the charge as laid, the Court shall acquit the accused of that charge.

9 (3) If the Court has doubts as regards any charge whether the facts proved show the accused to be guilty of the charge as laid, it may, before recording a finding on that charge, refer to the confirming authority for an opinion, setting out the facts which it finds to be proved and may if necessary, adjourn for that purpose.

(4) Where the Court is of opinion as regards any charge that the facts which it finds to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge but are nevertheless sufficient to prove the offence stand in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, it may, instead of a finding of "Not Guilty" record a special finding.

(5) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein.

(6) Where there are alternative charges, and the facts proved appear to the Court not to constitute the offence mentioned in any of those alternative charges, the Court shall record a finding of "Not Guilty" on that charge.

(7) 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 guilty upon the alternative charge or charges.

1 (8) If the Court thinks that the facts proved constitute one of the offences stated in two or more of the alternative charges, but doubts which of those offences the facts do at law constitute, it may, before recording a finding on those charges, refer to the confirming authority for an opinion, setting out the facts which it finds to be proved and stating that it doubts whether those facts constitute in law the offence stated in such one or other of the charges and may, if necessary, adjourn for that purpose.

(9) Not relevant.

After the amendment of Rule 99(1), the same was in the following

form:-

99. Record and announcement of finding:-

(1) The finding on every charge upon which the accused is arraigned shall be recorded and except as provided in these rules, shall be recorded simply as a finding of "Guilty" or of "Not Guilty". After recording the finding on each charge, the Court shall give brief reasons in support thereof. The Law Officer or, if there is none, the Presiding Officer shall record or cause to be recorded such brief reasons in the proceedings. The above record shall be signed and dated by the Presiding Officer and the law Officer, if any.

1 Therefore, under Rule 99(1), it became necessary for the SSFC to

give brief reasons in support of the findings, where the procedure of SSFC

was being followed.

9. It is needless to mention that Rule 99 will not apply to SSFC. The

procedure for SSFC is provided in Chapter XI (Rules 133 to Rule 161),

which alone is relevant here. It must be noted here that though Rule 99

was amended requiring authority of General Security Force Court or Petty

Security Force Court to give reasons in support of their findings, no such

amendment was made to Rule 149 which is applicable in case of SSFC.

Shri Malhotra, Learned ASG, therefore, rightly argued that since Rule 149

was left intact in contradistinction to Rule 99, the authorities of 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.

10. Shri Malhotra, Learned ASG further argued that if the SSFC was not

required to give reasons under Rule 149, then the appellate/revisional

authority under Section 117(2), also need not record its reasons while

dealing with the appeal. Shri Malhotra further pointed out that in all the

above matters, the SSFC only recorded findings in terms of Rule 149(1) by

recording the verdict of guilty and the said verdict has been confirmed by

the appellate authority under Section 117(2) of the Act in the similar 1

manner without giving any reasons. Shri Malhotra pointed out that the

High Court has allowed all the Writ Petitions only on the sole ground that

the reasons have not been given by the appellate authority or the SSFC.

He pointed out that if the SSFC was not required to give any reasons, even

the appellate authority under Section 117(2) of the Act was not required to

record any reasons. For this, Shri Malhotra relied on the decision in Som

Datt Datta Vs. Union of India [AIR 1969 SC 414], which decision is

followed by the Constitution Bench in the decision in S.N. Mukherjee Vs.

Union of India [1990 (4) SCC 594]. There also, the question arose as to

whether the court martial authorities in case of Army personnel, as also the

appellate authorities, dealing with the proceedings, were required to give

reasons and whether the absence of reasons would invalidate the verdict. In Som Datt Datta Vs. Union of India (cited supra), a contention was

raised that the order of the Chief of the Army Staff confirming the

proceedings of the court martial under Section 164 of the Army Act, 1950

was illegal since no reason had been given in support of the order by the

Chief of the Army Staff and that the Central Government had also not

given any reasons while dismissing the appeal of the petitioner in that case

under Section 165 of the Army Act, 1950. The Court took the view that

while Section 162 of the Army Act expressly provided that the Chief of

Army Staff may for reasons based on the merits of the case, set aside the

proceedings or reduce the sentence to any other sentence which the Court 1

might have passed, there was no express obligation imposed by Sections

164 and 165 of the Army Act on the confirming authority or upon the

Central Government to give reasons in support of its decision to confirm

the proceedings of the court martial. In Som Datt Datta Vs. Union of

India (cited supra), no other Section of the Army Act or any of the Rules

made thereunder, had been brought to the Court's notice, from which

necessary implication could be drawn that such a duty to give reasons was

cast upon the Central Government or upon the confirming authority.

11. In S.N. Mukherjee Vs. Union of India (cited supra), again more or

the less same question came before the Constitution Bench of this Court in

respect of the provisions under Section 164 of the Army Act, as also the

Army Rules. The Court held that except in cases where the requirement

has been dispensed with expressly or by necessary implication, an

administrative authority exercising judicial or quasi-judicial functions must

record the reasons for its decision. The Court was of the view that such

reasons, if recorded, would enable the higher Courts like Supreme Court

and the High Courts to effectively exercise the appellate or supervisory

power. It also expressed that the requirement of recording reasons would

necessarily (i) guarantee consideration by the authority; (ii) introduce

clarity in the decisions; and (iii) minimize chances of arbitrariness in

decision making. This Court also further went on to hold that the reasons 1

need not be as elaborate, as in the decision of a Court of law and that the

extent and nature of the reasons would depend on particular facts and

circumstances. What was necessary was that the reasons were clear and

explicit so as to indicate that the authority has given due consideration to

the points in controversy. However, the Court further went on to hold that

the provisions of the Army Act and Rules suggested that at the stage of

recording of findings and sentence, the court martial is not required to

record its reasons. This Court also held 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. This Court further held that

under the Army Rules, 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 and that the members of the court have to

express their opinion as to the findings 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 was held that it was only in case of

Rule 66(1) of the Army Rules, where there was a recommendation for

mercy, the reasons were required to be given. The Court further went on to

hold in paragraph 48 that reasons are also not required to be recorded for

an order passed by the confirming authority, confirming the findings and

sentence recorded by the court martial. It further went on to hold that even

the Central Government, dismissing the post-confirmation petition, is not 1

required to record the reasons. Ultimately in para 48, the Court observed:-

"48. For the reasons aforesaid, it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived at the same conclusion as in Som Datt Datta Case the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is, therefore, rejected."

12. On this backdrop, it is clear that the provisions for the SSFC and the

appellate authority are para materia, more particularly in case of Rule 149

and Section 117(2) of the Act, with the provisions which were considered

in both the above authorities. Therefore, there cannot be any escape from

the conclusion that as held by the Constitution Bench, the reasons would

not be required to be given by the SSFC under Rule 149 or by the

appellate authority under Section 117(2) of the Act. This position is all the

more obtained in case of SSFC, particularly, as the Legislature has chosen

not to amend Rule 149, though it has specifically amended Rule 99 w.e.f.

9.7.2003. It was pointed out that inspite of this, some other view was

taken by the Delhi High Court in the decision in Nirmal Lakra Vs. Union

of India & Ors. [2003 DLT(102) 415]. However, it need not detain us,

since Rule 149 did not fall for consideration in that case. Even otherwise,

we would be bound by law declared by the Constitution Bench in the

decision in S.N. Mukherjee Vs. Union of India (cited supra). 1

13. As has already been stated above, the contention of Shri Malhotra,

Learned ASG was not traversed by most of the Learned Counsel

appearing for the respondents and those who feebly controverted the

same, could not show any decision excepting the decision in Nirmal Lakra

Vs. Union of India & Ors. [2003 DLT(102) 415], which does not consider

Rule 149 and more particularly, the aspect of its non-amendment in

contradistinction with the amendment of Rule 99.

14. It was, however, urged by all the Learned Counsel appearing on

behalf of the respondents that since Delhi High Court has disposed of all

the petitions only on the sole ground of the absence of reasons in support

of the findings by SSFC and the appellate authority, the other contentions

on merits of the Writ Petitions were not considered. They, therefore, urged

that we should remand back all these matters. We had accordingly

remanded the matters. Shri Malhotra, Learned ASG also very fairly

conceded that the merits of the Writ Petitions were not considered and,

therefore, on that count, it would only be proper to remand the matters

back to the Delhi High Court for reconsideration on merits. We have

ordered accordingly. In the result, all these appeals filed by the Union of

India succeed. All the matters are sent back to the Delhi High Court, which

shall be now considered on the other contentions raised on merits. Since

the matters have become very old, we would request the High Court to 1

dispose of these appeals as early as possible and not beyond six months

from the date when the records reach Delhi High Court.

......................................J. (V.S. Sirpurkar)

......................................J. (Surinder Singh Nijjar) New Delhi;

February 16, 2010 1