T. Vaiphei, J.
1. This writ petition is filed by the petitioner challenging the proceeding of the Summary Security Force Court held against the petitioner under Section 46 and 40 of the Border Security Force Act, 1968 (the Act for short) and the penalty/sentence contained in the order dated 10.8.2001 of reduction in rank to the post of Constable from Havildar passed in connection therewith.
2. To appreciate the controversy, a brief narration of the facts as projected in the writ petition is called for. The petitioner at the relevant time was a Havildar in the Border Security Force ('BSF' for short) attached to 55th Battallion. On 9.1.97, while the petitioner was driving a Tata 407 mini truck bearing registration No. DL-1L 1089 in a convoy of five vehicles all belonging to the BSF under the command of the Assistant Commandant Shri R.C. Pant, his vehicle turned turtle while negotiating a 'U' curve at a place between Sinam and Border outpost Lamkankhonou in Manipur. In the said accident, a number of his colleagues and himself sustained injuries, but one Abdul Aziz, L/NK subsequently succumbed to his injuries. The case of the petitioner is that the vehicle he was driving had no iron bar or hoods in the carriage and that in the absence of such bar or hood, five jawans who were in the carriage were thrown overboard when the truck fell off the road and that the vehicle was proceeding in a normal speed and was in serial No. 3 in the convoy of five vehicles. A case was registered against the petitioner for rash and negligent driving being FIR No. 3(1) 97 Tengnoupal Police Station, Manipur, which was eventually disposed of by the learned Chief Judicial Magistrate, Chandel by accepting the final report vide the order dated 4.4.98. According to the petitioner, during the pendency of the said criminal case, the respondent No. 4 initiated a summary trial proceeding against him, for which record of evidence was taken by examining material witnesses and the most important witness, namely, Shri Kuldeep Singh, who was sitting in the cabin along with him had deposed that at the time of the accident, the truck driven by the petitioner was proceeding in a normal speed. The respondent No. 4 thereafter, by his order dated 24.9.97 imposed the punishment of 'Severely Reprimand' upon the petitioner and at the same time a sum of Rs. 3,621/- (Rupees Three thousand six hundred and twenty one) was also recovered from him as costs for damages caused to the vehicle which was eventually realized from his salary.
3. It is also the case of the petitioner that the respondent No. 4, however, cancelled the aforesaid order dated 24.9.97 and issued the order dated 5.12.97 giving fresh direction for holding summary trial against the petitioner under Section 46 of the Act. The petitioner was accordingly charge-sheeted under Section 46 of the Act and proceeded against, whereafter the respondent No. 4 by his order dated 20.3.98 imposed a punishment of reduction of one year of service of the petitioner thereby his promotion and pension benefit came to be reduced for one year. According to the petitioner, a copy of this order dated 20.3.98 was never served upon him. The grievance of the petitioner is that inspite of the aforesaid two punishments already imposed upon him, the respondents again charge-sheeted him under Section 46 of the Act. By this time, the petitioner was transferred to Shillong alongwith his Unit. The petitioner received the charge-sheet from the respondent No. 4 on 3.5.2001 and was informed that a Summary Security Force Court would be held against him on 5.5.2001. The petitioner was thereafter placed under suspension pending finalization of the proceeding against him. According to the petitioner, the Summary Security Force Court, without referring to the records of the earlier two proceedings against him and without affording any opportunity to him to clarify his position, awarded the punishment of reduction to the rank of Constable with effect from 21.7.2001. The appeal filed by him against the order dated 10.8.2001 did not bear any fruit. Hence, this writ petition.
4. The writ petition is contested by the respondents by filing their affidavit-in-opposition. The stands taken by the respondents are that there was no question of imposing multiple punishments upon the petitioner for a single offence and that the punishment awarded by the Commandant under Section 40 of the Act was already set aside by the Deputy Inspector General, since the Commandant had no competence to try a civil offence punishable under Section 46 of the Act, which was the offence committed by him. According to the respondents, all the proceedings conducted against him hitherto suffered from procedural irregularities which had already been rightly been set aside and that the position was as if no disciplinary action was ever initiated against him prior to 3.5.2001. As for the order dated 4.4.98 passed by the learned Chief Judicial Magistrate accepting the final report, it is pointed out by the respondents that the final report was submitted since a proceeding against the petitioner was being initiated under the Act and therefore, the acceptance of the final report by the learned Chief Judicial Magistrate could not bar the Summary Security Force Court from trying the case against the petitioner under the provisions of the Act. It is asserted by the respondents that the proceeding against the petitioner under Section 46 of the Act was conducted strictly in accordance with the Act and the Rules made thereunder and after affording an opportunity to the petitioner, for which no interference is called for. The respondents also vehemently denied that the petitioner was driving the vehicle at the normal speed while negotiating a 'U' turn and asserted that he was driving at a high speed of 60/70 Kms per hour which had prompted one of the occupants to request him to reduce the speed, but the petitioner ignored the request, which resulted in the accident. It is further asserted by the respondents that in the event of a speeding vehicle turning turtle, the occupants of the vehicle would still sustain grievous injuries irrespective of whether the vehicle was with or without hood or bars. In short, the sum and substance of the case of the respondents is that when the earlier two proceedings against the petitioner had been set aside by the competent authority and the punishments awarded therein not being given effect to, the respondents were well within their authority to conduct the Summary Security Force Court proceeding against him for the offence committed by him under Section 46 of the Act. According to the respondents, there was thus no question of punishing the petitioner twice. It is therefore submitted that the writ petition, which is devoid of merit, is liable to be dismissed with cost.
5. Mr. K. Khan, the learned Counsel for the petitioner contends that the proceeding of the Summary Security Force Court against the petitioner which culminated in the impugned order is barred by Section 75 of the Act inasmuch as he was already convicted by the Commandant for the same offence. He also submits that once the final report was accepted by the learned Chief Judicial Magistrate, Chandel, Manipur discharging the petitioner from the criminal liability, the subsequent proceedings including the impugned proceeding are misconceived, arbitrary and without any authority of law. It is also contended by the learned Counsel for the petitioner that when the petitioner was already severely reprimanded and was compelled to pay the cost of the damage sustained by the vehicle in the summary proceeding order dated 24.9.97, no proceeding could have been initiated against him for the same offence again since the same was barred by Section 75 of the Act. In other words, the principal contention of the learned Counsel for the petitioner is that the impugned proceeding of the Summary Security Force Court is a gross abuse of process of Court in flagrant violation of Article 20 (2) of the Constitution of India and Section 75 of the Act. The learned Counsel for the petitioner, therefore, vehemently submits that the impugned order as well as the proceeding of the Summary Security Force Court have no legs to stand and are liable to be quashed. Per contra, Mr. S.C. Shyam, the learned Central Government counsel supports the impugned order and proceeding and submits that the question of invoking Section 75 of the Act in the instant case cannot arise inasmuch as the earlier proceeding imposing punishments were without jurisdiction and were already set aside by the competent authority. He further submits that the Commandant initiating the first and second proceedings against the petitioner does not have the power to try an offence punishable under Section 304 A of the Indian Penal Code, which is admittedly a civil offence and when the earlier proceedings were without jurisdiction, there was no bar in initiating a fresh proceeding against the petitioner in accordance with law.
6. On the admitted position of the parties, the sole question which calls for consideration in this writ petition is whether the proceedings of the Summary Security Force Court culminating in the impugned order was barred by Section 75 of the Act. There is no dispute that two proceedings had already been initiated against the petitioner on earlier occasions. It is the case of the petitioner that the earlier proceedings had resulted in imposing penalties upon the petitioner and as such the third proceeding culminating in the impugned order was clearly prohibited by Section 75 of the Act. At this stage, it will be beneficial to refer to Section 75 of the Act, which is reproduced hereunder:
Prohibition of Second Trial--(1) When any person subject to this Act has been acquitted or convicted of an offence by a Security Force Court or by a Criminal Court or has been dealt with under Section 53 or under Section 55, he shall not be liable to be tied again for the same offence by a Security Force Court to dealt with under the said sections.
6.1 The aforesaid provision plainly shows that if any person subject to the Act has been acquitted or convicted of an offence by a Security Force Court or by a Criminal Court or has been dealt with under Section 53 or under Section 55, he cannot be tried again for the same offence by a Security Force Court or dealt with under Section 53 or Section 55 of the Act. The contention of the learned Counsel for the petitioner is that the petitioner has already been dealt with and was awarded punishment by the Commandant under Section 53 of the Act by imposing a punishment of severe reprimand and reduction from his pay of Rs. 3,621/- to make good for the damage caused to the vehicle in question and as such the impugned proceeding was clearly barred by Section 75 of the Act. I have duly noted this submission of the learned Counsel for the petitioner. Under Section 52 of the Act, it is provided that punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of the Security Force Court in the manner indicated in Sections 53 and 55. While Section 53 deals with the power of the designated authority to impose a punishment upon a person subject to the Act otherwise than as an officer or a subordinate officer, Section 55 deals with the power of the designated authority to proceed against a person of or below the rank of a subordinate officer. It is a common ground of the parties that the petitioner, who is a Havildar, can be dealt with under Section 53 of the Act.
7. Since the petitioner is charged with the offence punishable under Section 304-A Indian Penal Code, which is a civil offence as defined in Section 2(d) of the Act, the next question which falls for consideration is whether he can be dealt with under Section 52 of the Act? Section 52 of the Act provides for the power of imposing punishment otherwise than by a Security Force Court, which reads thus:
52. Punishment otherwise than by Security Force Court--Punishment may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a Security Force Court in the manner stated in Sections 53 and 55.
It may also be useful to reproduce the provisions of Section 53 of the Act which are as follows:
53. Minor punishments--Subject to the provisions of Section 54, a Commandant or such other officer as is, with the consent of Central Government, specified by the Director General may, in the prescribed manner, proceed against a person subject to this Act, otherwise than as an officer or a subordinate officer, who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say--
(a) Imprisonment in Force custody upto twenty-eight days;
(b) Detention upto twenty-eight days;
(c) Confinement to the lines upto twenty-eight days;
(d) Extra guard duties;
(e) Deprivation of any special position or special emoluments or any acting rank or reduction to a lower grade of pay;
(f) Forfeiture of good service and good conduct pay;
(g) Severe reprimand or reprimand;
(h) Fine upto fourteen days pay in one month;
(i) Deductions for his pay of any sum required to make good such compensation for any expense, loss, damage or destruction caused by him to the Central Government, or to any building or property as may be awarded by his Commandant.
8. Section 54 of the Act is not reproduced as It is irrelevant for our discussion. Except for the situations contemplated in Sections 47, 52 and 80 of the Act read with Rules 41 and 42 of the Border Security Force Rules, 1969 ('the Rules' for short), all offences under the Act committed by a person subject to the Act are to be tried by the Security Force Courts constituted under the Act, namely, (1) General Security Force Courts, (2) Petty Security Force Courts and (3) Summary Security Force Courts. The provisions of Section 52 provide for the power to deal with summarily a person subject to the Act otherwise than by Security Force Courts and to impose minor punishments specified in Clauses (a) to (i) of Section 53 of the Act. A plain reading of Section 53 of the Act, which prescribes the manner for inflicting such punishments, does not indicate or specify the offences which can be dealt with thereunder. The heading of Section 53, however, points out, in no uncertain terms, that the designated officers are only authorized to award 'minor punishments'. Though the punishments authorized to be inflicted by the designated authority under Section 52 are confined to minor punishments which are specified in Section 53(a) to (i) are undoubtedly minor punishments, no indication is, however, made therein as to what offences are authorized to be dealt with by the designated authority if it proceeds to award such minor punishments. The power to inflict a particular punishment is one thing, but the power to deal with or try an offence is entirely a different matter. Section 53 merely says that the person to be dealt with thereunder should be one who is subject to the Act and is charged with 'an offence under this Act'. As per the definition of an offence under Section 2(g) of the Act, the term 'offence' includes a civil offence. Therefore, prima facie, the designated authority is empowered by Section 53 to deal with a person subject to the Act, who is charged with any offence which may even be punishable with death or otherwise including a civil offence, and thereafter inflict minor punishments for commission of such offences. Whether this logical conclusion or literal construction could be the intention of the legislature is the moot point.
9. In my judgment, the answer to the above question must be in the negative for more than one reason. In the first place, the definition of the term 'offence' in Section 2(g) is given subject to the qualification--'unless the context otherwise requires' as enacted therein. Normally, an argument based on contrary context which will make the inclusive definition inapplicable to any provision in the Act is not acceptable as it would render the definition otiose. But it is equally settled that where the context makes the definition given in the interpretation clause inapplicable, such a defined word in the statute may have to be given a meaning different from that contained in the interpretation Clause. As noticed earlier, any literal construction of Section 52 or Section 53 of the Act having the effect of conferring upon the designated authority the power to deal with, in a summary manner, all kinds of offences including civil offences which are even liable to major punishments, with the aid of the definition of the term 'offence' in Section 2(g) of the Act, will lead to absurd and anamolous result. For example, under Section 74 of the Act, a Summary Security Force Court held by the Commandant (one of the designated authorities under Section 53 of the Act) is barred from trying the offences in relation to the enemy, which is punishable with death, offence relating to mutiny and civil offence unless there is no grave reason for immediate action and the reference can without detriment to discipline be made to a Petty Security Force Court for the trial of the alleged offender. Now, if I were to hold that the designated authority under Section 53 has the power to deal with any and every offence under the Act, then the Commandant, who is one of the designated authorities therein, will become vested with more power than even the Summary Security Force Court and can even try and deal with the offences to be tried by a Petty Security Force Court or, for that matter, by a General Security Force Court. In my opinion, this cannot be the intention of the legislature in engrafting Section 52 of the Act. What cannot be done directly by the commandant/designated authority under Section 74 of the Act cannot be done by them indirectly by taking recourse to Section 52 of the Act. Under the circumstances, it shall be the endeavour of this Court, by a process of interpretation, to find out the limits of the power of the designated authority under Section 52 to summarily deal with the classes of offences for inflicting minor punishments.
10. As noted earlier, Section 52 of the Act is a mechanism for summary disposal of offences under the Act by the Commandant or such other prescribed officer. Chapter VII of the Rules deals with the procedures for investigation and summary disposal of offences punishable under the Act. Rule 43 pertains to the manner in which the report of an offence committed by a person subject to the Act is to be dealt with. Then Rule 44 provides for the hearing of such a case in the first instance by the Company Commander or his equivalent. Rule 45, among others, empowers the Commandant to hear the charge and may award any of the punishments which he is empowered to award. Rule 46 provides for attachment of a person subject to the Act and charged with an offence under the Act to another unit. Rule 47 may give a clue to our inquiry and is reproduced thus:
47. Charges not to be dealt with summarily--A charge for an offence under Section 14 or Section 15 or Clauses (a) and (5) of Section 15 or Section 17 or Clause (a) of Section 18 or Clause (a) of Section 20 or Clause (a) of Section 24 or Section 46 (other than that for simple hurt or theft) or a charge for abetment of or an attempt to commit any of these offences shall not be dealt with summarily.
11. The provision extracted above unmistakably reveals that though the provisions of Sections 52 and 53 of the Act are not mentioned therein, reference to these sections can be inferred by necessary implications. It is a cardinal rule of construction that rules made under the statute are treated for the purpose of construction as if they were in the enabling Act and are to be of the same effect as if contained in the Act. In Tata Engineering and Locomotive Company Ltd. v. Gram Panchayat, Pimpri Waghere : [1977]1SCR306 , the Apex Court held that rules made under a statute are a legitimate aid to construction of the statute as contemporanea exposition. It is thus my irresistible conclusion that Section 52 of the Act read with Rule 47 of the Rules do not empower the Commandant or the other prescribed authority to summarily dispose of a person subject to the Act, who is charged with the offences under Section 14 or Section 16(5)(a) or Section 17 or Section 18(a) or Section 20(a) or Section 46 (other than that for simple hurt or theft) or a charge of abetment of or an attempt to commit any of these offences. There is no dispute at the bar that the petitioner, in the instant case, has been charged with committing Section 304-A of the Indian Penal Code, which is a civil offence punishable under Section 46 of the Act. Consequently, the Commandant, 55 Bn., Border Security Force, had no jurisdiction to deal with the petitioner under Section 52 of the Act. Therefore, the proceeding initiated by him and the order dated 5.7.97 emanating therefrom are void ab initio and is inoperative. Since the second proceeding initiated against the petitioner in terms of the order dated 5.12.97 was also abandoned by the respondent-authorities in the midway, the question of his conviction under Section 304-A IPC in that proceeding does not arise.
12. The next question which calls for consideration is whether the prohibition of second trial imposed by Section 75 of the Act is applicable to the facts of this case. As noted in the beginning, a second trial, summary or otherwise, is barred by Section 75 if the same person has already been convicted or acquitted or has been dealt with under Section 52 of the Act for the same offence. A plain reading of Section 75 will show that the fundamental conditions for the applicability of the section are: (1) the person concerned must have been duly acquitted or convicted of an offence by a Security Force Court or by a Criminal Court or has been duly dealt with under Section 53 or Section 55(2) the subsequent prosecution and proceeding must also be one for the trial or punishment of the such person, (3) the proceedings on both the occasions must be in relation to the same offence, and (4) the previous proceeding must have been held by a duly constituted Security Force Court or dealt with by a competent designated authority. In other words, if the person concerned was dealt with or tried by a body or authority bereft of jurisdiction, the conviction or acquittal of the person concerned will be a nullity and will not operate as a bar to fresh trial or to be dealt with under Section 52 of the Act. In the instant case, the previous proceeding against the petitioner has already been set aside by the higher authority while the second proceeding initiated against him for civil offence also stood abandoned. Under the aforesaid circumstances, it cannot be held that the third proceeding culminating in the impugned order is barred by Section 75 of the Act.
13. It is, however, contended by the learned Counsel for the petitioner that there is no provision under the Act for annulling the proceeding of a summary trial held by the Commandant under Section 53 of the Act. It is true that no such specific provision is found under the Act. On the other hand, the power to cancel, vary or remit a punishment is conferred by Section 55(2) of the Act upon the prescribed superior authority if the punishment so awarded appears to him to be illegal, unjust or excessive. Whether the absence of such a corresponding provision in Section 53 would denude the superior authority of the power to annul a proceeding which appears to him to be illegal or without jurisdiction? In the chapter relating to 'Voidness and Nullity', De Smith in his legal classic 'Judicial Review of Administrative Act', 4th Edn. at page 152, restates the effect of void acts and decisions in the following manner:
Void acts and decisions are indeed usually destitute of legal effects; they can be ignored with impunity; their validity can be attacked, if necessary, in collateral (or indirect) proceedings; they confer no legal rights on anybody. With one possible exception, these propositions are inapplicable to voidable acts and decisions. But the general rules about void acts are subject to major qualifications. Thus, although Courts have sometimes refused to entertain appeals against void decisions because they are nugatory and have even refused to award certiorari to quash such acts and decisions, it will often be inappropriate for a Court to set aside an ostensibly valid act which is in reality void. It may be justifiable, therefore, for a Court formally to set aside decisions by usurpers. In few cases they have gone so far as to accord full legal recognition, in the public interest, to decisions by de facto officers, who because of the informality of their appointment, were not strictly entitled to exercise any jurisdiction at all. Again, an ultra vires decision is ineffective against the party aggrieved, he may need, for his own protection, a formal pronouncement of a Court setting the decision set aside or declaring it to be void. Meanwhile, he may be enjoyed from disregarding the decision until its validity has been finally determined. If he takes no judicial proceedings at all within the prescribed statutory time limit, the void decision will become as impregnable as if it had been valid in the first place. And until he has obtained such a judicial pronouncement in an appropriate form of proceedings, third parties (lacking locus standing to impugn the invalid decision) may be obliged to treat it as if it were valid.
14. Simply put, proceedings which are a nullity can be ignored unless the exceptions carved out by the learned author are shown to exist; exception such as public interest, de facto doctrine and acquiescence, the existence whereof may dissuade Courts from setting those decisions aside. In the instant case, as found by me earlier, the first proceeding resulting in the order dated 5.7.97 was wholly without jurisdiction and, therefore, a nullity. None of the aforesaid exceptions are found to be in existence so as to confer immunity upon the first proceeding. Therefore, it cannot be said that the superior authorities did not have the power to set aside such void proceedings or order. In so far as the second proceeding is concerned, the same was aborted and was still-born when the impugned proceedings resulting in the order dated 10.8.2001 were initiated against the petitioner. Consequently, the second proceeding did not end in the conviction or acquittal of the petitioner. That apart, it can also be looked at from another angle. Even assuming that the superior authority had no power to set aside the order dated 5.7.97, the interference of this Court under Article 226 may not be called for on the facts and circumstances of this. When the order dated 5.7.97 was found to be passed by the commandant without jurisdiction, the setting aside of the impugned order by this Court will have the effect of restoring/reviving a void order. A writ of certiorari is a discretionary remedy. The High Court while exercising its extraordinary jurisdiction, which is also an equitable jurisdiction may not strike down an illegal order if it will result in perpetuation of a void order. Even if the contention of the petitioner that the superior authority had no power to set aside the order of the commandant passed under Section 52 of the Act is right, having regard to the overall circumstances of the case, this is not a fit case for the interference of this case. In the view that I have taken, I hold that the impugned proceedings of the Summary Security Force Court or the impugned order dated 10.8.2001 are not barred by Section 75 of the Act.
15. The off-shoot of the foregoing discussion is that there is no merit in this writ petition. The writ petition has to be, therefore, and is hereby dismissed by directing the parties to bear their own costs. The interim order, if any, also stands vacated.