S.D. Aggarwal, C.J.
1. The present Letters Patent Appeal is directed against the order of the learned Single Judge dated 28th October, 1983 in Civil Writ Petition No 2740 of 1981 filed by Madan Singh against Union of India, appellant herein The brief facts, giving rise to this appeal are as follows :-
Madan Singh respondent herein, was a Constable in the Border Security Force. He was posted at Jalandhar Cantonment in April 1981. A Criminal case was initiated against him on the charge that on the night intervening April 2/3, 1981, at about mid night he improperly and without authority entered the Unit residential quarter of Miss Jasbir Kaur, a teacher in the local B. S. F. Higher Secondary School and used criminal force with intent to outrage her modesty Madan Singh was consequently charged under Sections 40 and 46 of the Border Security Force Act, 1968 (hereinafter referred to as the Act).
During trial, Madan Singh confessed the charges levelled against him and consequently he was convicted by the Security Force Court and sentenced to six months rigorous imprisonment. He was also dismissed from service The order of the Security Force Court was confirmed by the Deputy Inspector General of Border Security Force Jalandhar, vide his order dated April 28, 1981.
Madan Singh, thereafter, filed a petition under Section 117(2) of the Act to the Director General of Border Security Force New Delhi The Director General of Border Security Force dismissed his petition vide order dated 23rd April 1981 which was communicated to him by order dated 29th May, 1981.
The writ petitioner challenged the order dated 23rd April, 1981 passed by the Director General of Border Security Force by filing Civil Writ Petition No. 2740 of 1981. The said writ petition was partly allowed by the learned Single Judge vide order dated 28th October, 1983 which has been impugned in the present Letters Patent Appeal.
2. Learned counsel, appearing for Union of India, has urged that the learned Single Judge has erred in directing that Madan Singh writ petitioner, should be given an opportunity of hearing with regard to imposition of sentence on him The further argument of the learned counsel is that under Section 117(2) of the Act, no such opportunity of hearing is required to be given by the Director-General of Border Security Force and, as such, the judgment of the learned Single Judge is erroneous in law. We have heard Shri Deepak Agnihotri, learned counsel appearing for Madan Singh, respondent.
3. In case of a charge against a person under Sections 40 and 46 of the Act, the trial takes place before the Security Force Court The Security Force Court as defined in Section 3(1)(a) of the Act means a Court referred to in Section 64 of the Act. Section 64 of the Act lays down that there shall be three kinds of Security Force Courts, namely, (i) General Security Force Courts, (ii) Petty Security Force Courts and (iii) Summary Security Force Courts.
4. It is not disputed that before the Security Force Court a person who is charged is given an opportunity of being heard It is after hearing the accused that a sentence is awarded by the Security Force Court. In case, the sentence is awarded by the Security Force Court, the proceedings of the Security Force Court are transmitted to an officer not below the rank of D.I.G., B.S.F. within whose command the trial was held, for confirmation. This procedure is provided in Section 115 of the Act. The Deputy Inspector General of the Bolder Security Force under Section 115 of the Act is empowered, for reasons based on the merits of the case, to set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed. Section 115 consequently provides a full opportunity to an aggrieved person against whom sentence has been awarded by a Summary Security Court to challenge the same before the Deputy inspector General of Border Security Force, before confirmation. The Deputy Inspector General of Border Security Force has power to set aside the proceedings, if he so thinks fit in the interest of justice. Very wide powers have been given under Section 115 of the Act Against the order passed by the Security Force Court which has been confirmed under Section 115 of the Act by the Deputy Inspector General of Border Security Force, an aggrieved person has been given a right to move a petition under Section 117 of the Act to the Central Government, the Director General or any prescribed officer superior in command to the one who confirmed such finding or sentence. Section 117(2) which is relevant for the purpose of this case, is quoted below :-
'any person subject to this act who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director General or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Director-General, or the prescribed officer, as the case may be, may pass such order thereon, as it or he thinks fit.'
5. On a reading of sub-section (2) of Section 117 of the Act, it is clear that when a petition is present, the Director General or the Officer so authorised has been empowered to pass such orders on the petition as he deems fit. Sub-section (2) of Section 117 of the Act, quoted above, does not lay down that at that stage an opportunity is to be afforded to an aggrieved person before the authority can dispose of the petition. In our opinion, it is clear from a reading of the entire Act that since two opportunities have already been afforded in the Act to a person charged, first before the Summary Security Force Court and, thereafter, before the Deputy Inspector General of Border Security Force, where the sentence in the proceedings are confirmed, the intention of the legislature was not to give any further opportunity at the stage when the petition is filed under Section 117(2) of the Act. The petition filed under Section 117(2) of the Act is in the nature of a mercy petition, la case, the Director-General finds from the record that the relief h to be given to the petitioner, it enables the Authority to grant such relief but, in our opinion, it is not incumbent upon the Director-General of Border Security Force to give an opportunity of hearing before passing any order on the petition, Consequently, in our opinion, the view taken by the learned Single Judge in the writ petition is not sustainable.
6. In the result, the appeal is allowed and the judgment of the learned Single Judge dated 28th October, 1981, in C.W P. No 2740 of 1981 is set aside. The writ petition is dismissed. Parties are directed to bear their own costs.