ORDER
MEETING AT ABOUT 131200 HRS 1st AT THE SAME PLACE (.) THEY PROMISE THAT THEY WILL RETURN. THE BSF PERSONNELS (.) MEETING ENDED AT CO-ORDIAL. ATMOSPHERE.
Sd/-
SWARN SINGH
DY COMDT.'
It has further been submitted that even another Protest Note issued by the BSF Commandant in reply to the Protest Note of the Bangladeshi counterpart was issued, but the same had not been made part of the proceedings.
The learned counsel would contend that in terms of Section 87 of the BSF Act, the provisions of the Indian Evidence Act would apply and in that view of the matter the purported Protest Note whereupon the entire prosecution case is based, was inadmissible in evidence as the maker of the report were not examined to prove the same. Even no attempt was made to summon the witnesses from Bangladesh for their examination by SSFC and, thus, a valuable right to cross-examine the said witnesses was lost.
7. The learned counsel would contend that Shri B.K. Mehta, the Commandant, in the process of handing/taking over, had taken over the petitioner from Bangladesh Rifles and in respect whereof, a receipt was prepared and signed by him, which is at page 61 of the paper book and, thus, he, being an important witness in the matter, could not have been entrusted with the said proceeding. The said receipt, according to the petitioner, could not have been taken on record without examining Shri B.K. Mehta as a witness. It was further submitted that Shri B.K. Mehta had also received a Protest Note from the BDR and replied thereto, but he willfully and deliberately did not place the same on record. According to the petitioner, he was thus, biased as a result whereof he being biased against the petitioner was disqualified to deal with the case in terms of Rule 47 of the BSF Rules.
The learned counsel would further submit that the petitioner was tried by SSFC on the same charges on 06.02.1999 and awarded the punishment to suffer 4 months' rigorous imprisonment and the sentence commenced immediately on signing of the SSFC in terms of Section 120 of the BSF Act. Although the said trial was set aside for non-compliance of Rule 45, the learned counsel would contend, that the second trial was, thereforee, barred under Article 20 of the Constitution of India as also Section 75 of the BSF Act. Reliance in this connection has been placed on Surinder Singh v. The Union of India & Ors.,
The learned counsel has drawn our attention to the fact that Sections 162 and 121 of the Army Act, 1950 are in pari material with Sections 115 and 75 of the BSF Act.
8. It was further submitted that as the petitioner had partially undergone the sentence awarded by SSFC trial dated 06.02.1999 till he was re-tried on 11.03.1999, by another SSFC; the second trial was merely an eye-wash and only the technical infirmity in the earlier trial was removed and the petitioner was once again awarded the same sentence.
The learned counsel would urge that having regard to the fact that no copy of the earlier trial proceedings had been made available to the petitioner, he suffered great prejudice particularly having regard to the fact that SSFC trials do not require confirmation.
9. Non-examination of HC Mohinder Singh, the leaned counsel would contend, has also caused great prejudice to the petitioner. In any event, the standard of proof adopted in the instant case was wholly contrary to the criminal jurisprudence. The learned counsel would submit that as no reason had been assigned, the same being vocative of the principles of natural justice, the entire proceeding must be held to be vitiated in law.
10. Mr. Sameer Agarwal, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the petitioner had been tried by SSFC strictly in accordance with the rules wherein the principles of natural justice had also been complied with.
The learned counsel would contend that a finding of fact has been arrived at to the effect that the petitioner had crossed the international border along with personal weapons and ammunitions and in an intoxicated state and as the said incidence brought bad name to the country he was required to be dealt with strictly. The learned counsel would also urge that the defense of the petitioner had been found to be false.
Mr. Aggarwal would urge that the first proceeding was held to be bad in law as Rule 45 of the BSF Rules had not been complied with and, thus, the petitioner had not been prejudiced and in that view of the matter, there was no bar in the BSF Act and the Rules for trial of the petitioner, particularly when the earlier proceedings were set aside on technical ground.
As regard constitution of Court by Shri B.K. Mehta, it was submitted that in terms of the provisions of the BSF Act, Shri B.K. Mehta alone could initiate the same. Shri B.K. Mehta was not a witness inasmuch he merely collected the petitioner from the Bangladeshi Officers during the Flag Meeting.
The learned counsel would contend that statutory petition is not required to be supported by reasons. Reliance in this connection placed on S.N. Mukherji v. Union of India, : 1990CriLJ2148a .
As regard non-recording of reasons by the Commanding Officer, it was submitted that in terms of Rule 149 of the BSF Rules, reasons are not required to be assigned. It was submitted that there is a set proforma under the BSF Rules, which have been made in terms of Rule 149 thereof and in view of the fact that the verdict has been pronounced orally in terms of the said proforma, no reason, thereforee, was required to be given at the said time.
11. According to the learned counsel even if minor irregularities had taken place, the same would not vitiate the trial. Reliance in this connection had been placed on Union of India v. R.K. Sharma : AIR2001SC3053 and Major G.S. Sodhi v. Union of India : 1991CriLJ1947 .
The learned counsel would contend that the said Act and the said Rules provide for mechanism by which military discipline is preserved and in that view of the matter, the jurisdiction of this Court is limited.
12. India, i.e., Bharat proclaims equality to all persons. Article 33 of the Constitution of India is an exception to the said rule to the extent it is covered by the provisions of Army Act, 1950 and the Rules framed there under, namely, Army Rules, 1954. By reason of Article 33 of the Constitution of India, the Parliament is empowered to restrict or abrogate by law Fundamental Rights in their application to the members of the Armed Forces and the forces charged with the maintenance of public order.
13. In a large interest of national security as also the military discipline, although such a right has been conferred upon the Parliament, the question arises is as to whether the benefits of the liberal spirits of the Constitution would be totally deprived to a class of citizens, namely, those who are engaged in defending the country against external aggression and those who serve the country in peace as much as in war. A person may not have a Fundamental Right, yet he is entitled to the benefits of the Charter of Human Rights. Despite denial of some of the provisions contained in Part III of the Constitution, he is entitled to compliance of the principles of natural justice.
14. The citizens as also the aliens are entitled to a trial governed by rule of law in a Court of Law presided over by experienced Judge having a hierarchy thereforee.
Furthermore, a person's Right to Life and Liberty as guaranteed under Article 21 of the Constitution of India cannot be allowed to be torpedoed in a casual manner. The Army personnel like others having regard to the expanded definition of Article 21 of the Constitution of India are entitled to preservation of his reputation as also his livelihood and protection from oppression.
B.S.F. Officer may not have the right of protection granted to the Civil Servants under the Constitution of India, but are entitled to compliance of the procedures laid down under the said Act and Rules framed there under.
History of procedure is the history of liberty. Thus, denial to the officer from the established procedure, particularly those, which are mandatory in nature, would vitiate a proceeding. Even, the directory provisions are required to be substantially complied with.
15. A person in khaki indisputably is entitled to the protection of human right. Thus, even if the protection as envisaged in Part III of the Constitution of India are not fully available, the fair procedure doctrine must be read into the provisions of the said Act and the Rules. We must notice that the procedures contemplated under the said Act are not judicial proceedings; they are more akin to the administrative proceedings.
16. We are astonished to see a fast-growing dissatisfaction amongst the Army / Para Military personnel. Frustration amongst the lower rungs of the Army Officer is evident from the number of cases, which are being filed in the law courts. Killing of a higher Army Officer by a Jawan now a day is a regular news item.
17. Arguments in the proceedings before this Court mainly revolve around unfair procedure adopted in the Court Martial proceedings and/or non-following the mandatory procedure. More often than not, the courts are called upon to go through the entire proceedings with a view to find out as to whether the findings of the authority are based on no material whatsoever.
18. The principles of natural justice have three basic pillars; assigning of reason(s) is one of them. It is a trite law that whenever civil or evil consequences are ensued by reason of an administrative order, the principles of natural justice are required to be complied with.
19. In Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors. : 1983CriLJ647 , the Apex Court hoped and stressed that changes all over the English-speaking democracies would awaken Parliament to the changed system as regards the Armed Forces. It was pointed out that merely by joining the Armed Forces a person does not cease to be a citizen so as to be wholly deprived of his rights under the Constitution of India. The Court expressed its anguish and concern in the following terms:-
'44. Reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration : 1978CriLJ1741 , that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to crate a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilized community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human being and is a cherishedand prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the criminal curt and the court martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts, we must recall what Justice William O'Douglas observed : '[T]hat civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. Very expression 'court martial' generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavor.' In Reid v. Covert 1 L Ed 2D 1148 : 354 US 1 (1957), justice Black observed at page 1174 as under:
Courts martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of 'command influence'. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command.Frequently, the members of the court martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings-in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or sentence in confirmation proceeding under Section 153 is provided for is poor solace. A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to be counter-productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilized days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Any is always on alert for repelling external aggression and suppressing internal disorder so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realized that an appeal from Creaser to Creaser's wife -- confirmation proceeding under Section 153 -- has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at lest there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged.. Judicial approach by people well-versed in objective analysis of evidence trained by experience to loo at facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of body. And nothing revolutionary is being suggested. Our Army Act was more or less modeled on the U.K. Act. Three decades of its working with winds of change blowing over the world necessitates a second look so as to bring it in conformity with liberty-oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far-reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review of decisions of court martial. U.K. had enacted a Court Martial (Appeals) Act of 1951 and it has been extensively amended in Court Martial (Appeals) Act, 1968. Merely providing an appeal by itself may not be very reassuring but the personnel of the appellate court must inspire confidence. The court martial appellate court consists of the ex officio and ordinary judges of the Court of Appeal, such of the judges of the Queen's Bench Division as the Lord Chief Justice may nominate after consultation with the Master of the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate such Judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of Northern Ireland may nominate and such of the persons of legal experience as the Lord Chancellor may appoint. The court martial appellate court has power to determine any question necessary to be determined in order to do justice in the case before the court and may authorize a new trial where the conviction is quashed in the light of fresh evidence. The court also has power inter alia, to order production off documents or exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the members of the court martial or the person who acted as Judge-Advocate, order a reference of any question to a Special Commissioner for Enquiry and appoint a person with special expert knowledge to act as an assessor. Frankly the appellate court has power to full judicial review unhampered by any procedural claptrap.'
'45. Turning towards the U.S.A., a reference to Uniform Code of Military Justice Act, 1950, would be instructive. A provision has been made for setting up of a court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranteed in civil courts. To cite one example, the right to legally qualified counsel was made mandatory in general court martial cases 13 years before the decision of the Supreme Court in Gideon v. Wainwright 372 US 335 (1963). Between 1950 and 1968 when the Administration of Justice Act, 1968 was introduced, many advances were made in the administration of justice by civil courts but they were not reflected in military court proceedings. To correct these deficiencies the Congress enacted Military Justice Act, 1968, the salient features of which are : (1) a right to legally qualified counsel guaranteed to an accused before any special court martial ; (2) a military judge can in certain circumstances conduct the trial alone and the accused in such a situation is given the option after learning the identity of the military judge of requesting for the trial by the judge alone. A ban has been imposed on command interference with military justice, etc. Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. If in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court martial where the judge and the accused don the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremovable. We, thereforee, hope and believe that the changes all over the English-speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government to the glaring anomaly that courts martial do no even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair lay is denied to it.'
20. The Apex Court in Union of India and Anr. v. Charanjit S. Gill and Ors. (200) 5 SCC 742. lamented that except amending Rule , no action in this behalf has been taken despite observation made in Prithi Pal Singh's case (supra) and observing that time has come to allay the apprehension of all concerned that the system of trial by Court Martial was not the archetype of summary and arbitrary proceedings. It was observed:-
'11. In the absence of effective steps taken by Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under law by not forgetting the paramount need of maintaining the discipline in the Armed Forces of the country.'
The Apex Court noticed the submissions that upon general survey of the provisions of the Army Act and the Army Rules, a Judge-Advocate for all intent and purport is the Court and the Court Martial is the Jury so far as trial of the accused is concerned, although did not agree with it wholly, but observed that the same is not totally without substance.
Again upon noticing that the justice dispensation system in the Army is based upon the system prevailing in Great Britain in great detail, it was held that unless a fit person is appointed a Judge-Advocate, the entire proceedings would be vitiated in law.
21. The importance of assigning of reasons must be gauged from the aforementioned situation. Rule 64 of the Army Rules has been amended, but the provisions of other statutes dealing with Paramilitary Forces are not.
22. In S.N. Mukherji's case (supra), the question arose as to whether the confirmation authority, while confirming the order of sentence of the court-martial, is required to assign any reason. Two questions, which were framed, are:-
'(i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and
(ii) If so, does the said principle apply to an order confirming the findings and sentence of a court-martial and post-confirmation proceedings under the Act?'
S.C. Agarwal, J., speaking for the Bench, held:-
'34. The decision of this Court referred to above indicate that the regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the stand point of policy and expediency.
35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred too above, which have also weighed with this Court in holding that tan administrative authority must record reasons for its decision are of no less 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 decisions-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, thereforee, 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 too 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 the 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 to reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.'
Therein, the Apex Court observed that the under-lined object of the rules of natural justice is to prevent miscarriage of justice and secure fair play and action. It was held that the requirement to record reasons can be regarded as one of the principles of natural justice, which covered exercise of powers by administrative authorities. It was observed:-
'39. For the reasons aforesaid, it must be concluded except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.'
However, it was observed that such a provision has been expressly and / or by necessary implication excluded in a proceeding under the said Act and the Rules made there under.
Thus, the Apex Court, in S.N. Mukherji's case (supra), whereupon reliance has been placed by the learned counsel appearing on behalf of the respondents, was primarily concerned with the question as to whether reasons are required to be assigned while disposing of post-confirmation petition under Section 164(2) of the Act.
23. In R. v. Civil Service Appeal Board (1991) 4 All ER 310, it was held that the Civil Service Appeal Board carried out a judicial function and set out three possible based for holding that the Board should have given reasons for their award and what is necessary to give a brief statement of decision and not a detailed elaborate judgment.
24. In Padfield v. Ministry of Agriculture (1968) 1 All ER 694, the House of Lords made it clear that if a request or application was rejected by the Minister without giving any reason, the court might infer that he had no good reason; and that if he gave a bad reason, it might vitiate his decision.
25. In the Siemens Engineering and . v. The Union of India and Anr. : AIR1976SC1785 , the Apex Court held:-
'6. ... It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons.
... ... ... ... ... If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunal exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring conference in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.'
26. Yet again the Apex Court in Organo Chemical Industries and Anr. v. Union of India and Ors. AIR 1979 SC 1803, while following the principles laid down in The Siemens Engineering Manufacturing Co.'s case (supra), emphasized that one of the requirements of natural justice was 'spelling out reasons for the order made, in other words, a speaking order.
27. In Union of India and Ors. v. E.g. Nambudiri : (1991)IILLJ594SC , it was held:-
'7. ... The purpose of the rules of natural justice is not prevent miscarriage of justice and it is no more in doubt that the principles of natural justice are applicable to administrative orders if such orders affect the right of a citizen. Arriving at the just decision is the aim of both quasi-judicial as well as administrative enquiry, an unjust decision in an administrative enquiry, an unjust decision in an administrative enquiry may have more far=reaching effect that decision in a quasi-judicial enquiry. Now, there is no doubt that the principles of natural justice are applicable even to administrative enquiries. See A.K. Kraipak v. Union of India, : [1970]1SCR457 .
8. The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the persons against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for its decision, as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority, which hs no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. See Regina v. Gaming Board for Great Britain ex p. 431. Though the principles of natural justice do not require reasons for decision, in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is thereforee desirable that reasons should be stated.'
28. However, as regard necessity to assign reasons by the authorities while disposing of representation, it was observed:-
'10. There is no dispute that there is no rule or administrative order for recording reasons is rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no license to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer counter-signing the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the Court, which may have led to the rejection of the representation. It was always open to an administrative authority to produce evidence aliunde before the court to justify its action.'
29. If reasons are not assigned having regard to the parameters of judicial review, the court may not be able to find out as to whether any illegality, irrationality or procedural impropriety has been committed. While considering the question of irrationality, if a High Court or the Supreme Court is required to undergo the stressful exercise of going through the entire records and arriving at a decision that there was sufficient evidence to uphold the order or conviction and sentence as was done by the Apex Court in S.N. Mukherji's case (supra), the very purpose of having a limited power of judicial review may in a large number of cases would be lost.
30. Judicial Review, it is trite, is a basic feature of the Constitution of India. All statutes must, thus, be construed in such a manner so that right of judicial review of a citizen may be effectively safeguarded.
31. In L. Chandra Kumar v. Union of India and Ors. : [1997]228ITR725(SC) , it has been held that the Parliament cannot insert a provision in the Constitution, which would take away the right of judicial review of the High Court under Article 226 of the Constitution of India. Under the Constitution of India, thus, a right of judicial review is considered to be the basic structure of the Constitution, which, thus, can in no situation be altered or taken away.
31. Can it be permitted to be done indirectly in terms of the provisions of statute only on the ground of the unavailability of the protection in this behalf under Article 33 of the Constitution is the question.
33. It is, in the aforementioned context, the procedural provisions, which are required to be considered.
34. In Glaxo Laboratories v. A.V. Venkateswaran : AIR1959Bom372 , the Bombay High Court held that when a law confers a right of appeal, the Legislature intends that that right should be an effective right and that right can only be effective if the officer or authority from whose order an appeal lies gives reasons for his decision. It is only then that the appellate Court can properly discharge its function, and the consider whether the decision of the lower authority was correct or not.
35. The efficacy of assigning reason(s) has also been highlighted by the Apex Court in Harinagar Sugar Mills v. Shyam Sunder Jhunjhunwala and Ors. : [1962]2SCR339 .
36. In Sardar Govindrao and Ors. v. The State of M.P. : [1965]1SCR678 , while referring to its decision in Harinagar Sugar Mills Ltd.'s case (Supra), the Apex Court held that even in those cases where the order of the Government is based upon confidential material, the Courts have insisted that reason should appear when Government performs curial or quasi judicial functions.
37. In Bhagat Raja v. Union of India and ors. : [1967]3SCR302 , it has been held that the case for giving reasons or for making a speaking order becomes much stronger when the decision can be challenged not only by the issue of a writ of certiorari but an appeal to the Apex Court.
38. We may also notice that in De Smith, Wolffand Jowell, Judicial review of Administrative Action, Fifth Edition, Sweet & Maxwell, London, 1995, it has been stated that although as a general principle reasons are not required to be assigned by an authority taking administrative decisions and particularly in the case while discretionary power is exercised; however, in the case of discretionary exercise as in the other decisions on facts and law, the Judge should set out his reasons. (See EagleTrust Co. v. Piggott-Brown (1985) 3 All 119 ). However, the learned author sets out the advantages of a duty to give reasons as also the disadvantages thereof in the following terms:-
'The advantages of a duty to give reasons
The absence of the general duty to give reasons has long been condemned as a major defect of our system of administrative law. As the Justice-All Souls Committee concluded, 'no single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions.' The beneficial effects of a duty to give reasons are many. To have to provide an Explanationn of the basis for their decision is a salutary discipline for those who have to decide anything that adversely affects others. The giving of reasons is widely regarded as one of the principles of good administration in that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making. Moreover, if published, reasons can provide guidance to others on the body's likely future decisions, and so deter applications, which would be unsuccessful. Further, the giving of reasons may protect the body from unjustified challenges, because those adversely affected are more likely to accept a decision if they know why it has been taken. In addition, basic fairness and respect for the individual often requires that those in authority over others should tell them why they are subject to some liability or have been refused some benefit.
It is because of these very real benefits, which result from the giving of reasons that a legal duty to give reasons have become an integral part of the model of administration that has dominated English administrative law since the publication of the Franks Report. If those entitled to be heard have no right to know how a tribunal resolved the issues in dispute at the hearing, they may well regard as an empty ritual their legally conferred opportunity to be head and to influence the tribunal by producing witnesses and other evidence to establish the relevant facts, advancing arguments on the proper exercise of any discretion and the resolution of any legal questions, and challenging their opponents' case. Unless the tribunal makes findings on disputes as to fact, explains the exercise of its discretion (by indicating the considerations that it has taken into account and relative weight assigned to them, for example) and gives its answers to any questions of law, there can be no assurance that the tribunal has discharged its obligation to base its decision upon the material presented at the hearing, rather than on extraneous considerations.
In addition to helping to ensure the fairness of an initial hearing, a requirement of reasons is of particular importance where decisions are subject to a right of appeal on questions of law. A reasoned decision is necessary to enable the person prejudicially affected by the decision to know whether he has a ground of appeal; it will also assist the appellate court to scrutinize effectively the decision for relevant error, without necessarily usurping the function of the tribunal by itself re-determining the questions of fact and discretion which parliament entrusted to the tribunal.
The disadvantages of a duty to give reasons
There are, however, some significant objections which can be raised to the courts extending a general requirement to provide reasons and findings of facts to all administrative bodies that are in any case obliged by the duty of fairness to inform those whom they may prejudicially affect of the case that they have to meet and to offer them an opportunity to submit representations. These include the possibility that reasons, especially if published, will unduly increase 'legalization' and the formal nature of the decision making process, place burdens upon decision makers that will occasion administrative delays, and encourage the disappointed to pore over the reasons in the hope of detecting some shortcoming for which to seek redress in the courts. In addition, a reluctance to give reasons perhaps because they may occasion harm (by, for example, causing personal distress, revealing confidences, or endangering national security) could discourage the making of difficult or controversial decisions or result in the production of anodyne, uninformative and standard reasons. Nonetheless, apart rom the exceptional case, the advantages of providing reasons so clearly outweight the costs that fairness requires that the individual be informed of the basis of the decision.'
The learned author specifies various circumstances where failure to provide reasons would amount to procedural impropriety. It was observed:-
'Since the duty to give reasons may ow be seen simply as yet another aspect of the requirements of procedural fairness, it would be wrong to imagine that the duty may be artificially confined to situations in which the decision maker as acting in a 'judicial' or 'quasi-judicial' capacity. Although in Cunningham, some reliance was placed upon the fact that the Civil Service Appeal Board is a fully 'judiciaries' tribunal, and one that is almost unique among tribunals in not falling under a statutory duty to give reasons, subsequent decisions have made it clear that reasons may be required of a body exercising 'quasi-judicial' functions, such as that of the Home Secretary in relation to the tariff period to be served by life sentence prisoners, and 'administrative' functions, such as a local authority making decisions, regarding an individual's housing application. The distinction between judicial, quasi-judicial and administrative functions may be consigned to history in this context, as well as more generally. As Sedley J. has put it, in rejecting such a submission in the context of the duty to give reasons. In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people's lives than the decisions of courts, and public law has since Ridge v. Baldwin been alive to that fact.'
39. The House of Lords in Doody v. Secretary of State 1993 (3) All ER 92 observed that although assigning reasons may not be mandatory requirement in all cases, but such a duty may in appropriate circumstances be implied.
40. However, having regard to the provisions contained in the Army Act and the Army rules vis-a-vis Article 33 of the Constitution of India, duty to assign reasons at all levels is desirable.
The Court Martials and in particular General Court Martial may even impose death penalty. In a complicated criminal case, the Courts are under an obligation to let an accused know what he thought about the matter; how he appreciated the evidence, whether the standard of proof required for proving/establishing the guilt of the accused beyond all reasonable doubt had been satisfied; and several other factors. What is necessary in such cases is to note the approach of the Judge. In true sense, in a complicated criminal trial, the human rights as also the invaluable fundamental and statutory rights of an accused are at stake.
41. There is yet another aspect of the matter, which may also taken note of i.e., in terms of Section 87 of the BSF Act, the provisions of the Evidence Act are applicable in General Court Martial proceedings.
Section 3 of the Evidence Act defines the terms 'proved', 'disproved' and 'not proved' in the following terms:-
' 'Proved'. --A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
'Disproved'. --A fact is said to be disproved when, after considering the matters before, it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
'Not proved' --A fact is said to be not proved when it is neither proved nor disproved.'
Section 4 of the Evidence Act defies the terms 'may presume' and 'shall presume' in the following terms:-
' 'May presume'. --Whenever it is proved by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
'Shall presume'. --Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such as proved, unless and until it is disproved.'
Thus, how the fact has been proved, disproved or not proved and/or whether in a given situation, presumption against the prosecution has rightly been drawn or not can only be deciphered if reasons are assigned and not otherwise. The expression 'considered' in the aforementioned situation play an important role. It would ordinarily require compliance of principle of natural justice.
We, thereforee, are of the opinion that it is always desirable to assign reasons, particularly in a case of this nature by the General Court Martial.
42. Furthermore, the opinion of the authority must be objective in nature. Whether the proceedings have been scrupulously followed or not and in the event the same has not been followed, how far the same affects the trial is a matter, which can be deciphered from the approach of the Court. In the formation of any opinion, the materials-on-record and the objective approach are the keywords.
43. Let us now consider the provisions of the BSF Act. Chapter VIII of the BSF Act provides for the procedure of Security Force Courts. The Court may consist of several members, in which event, the majority of votes shall decide the fate of the accused, except in a case where sentence of death is to be awarded concurrence of at least two-third of the votes is required. The Presiding Officer has a vital role to play.
Section 87 of the BSF Act reads thus:-
'87. General rule as to evidence. -- The Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, apply to all proceedings before a Security Force Court.'
A Security Force Court can also take judicial notice. It has the power to summon witnesses; it has the power to grant exemption from production of documents; it may direct that some witnesses may be examined on behalf of the defense at its discretion.
The proceedings are judicial proceedings within the meaning of Sections 93 and 228 of the Indian Penal Code (in short, 'I.P.C.'). The Security Force Court is a Court within the meaning of Sections 480 and 482 of the Criminal Procedure Code (in short, 'Cr.P.C.'). It, thereforee, has inherent powers also. it has got all the powers of an ordinary Criminal Court as regards custody and disposal of property as also disposal of property regarding which offence is committed.
Only the Central Government or the Director General can annual the proceedings of the court.
44. In the aforementioned backdrop, the provisions of the BSF Rules may also be noticed.
The procedures for Summary Security Force Court had been laid down in Chapter XI of the BSF Rules. Rule 134 of the BSF Rules provides for translation of evidence. Rule 135 thereof speaks of assembly of the Court. Rule 138 speaks of arraignment of accused, which is in the following terms:-
'138. Arraignment of accused.-
(1) After the Court and interpreter (if any) are sworn or affirmed as above mentioned, the accused shall be arraigned on the charges against him.
(2) The charges on which the accused is arraigned shall be read and, if necessary, translated to him, and explained and he shall be required to plead separately to each charge.'
Rule 139 of the BSF Rules, an accused is entitled to object to any charge. Rules 140 thereof provides for amendment of charge. Rule 142 specifies the procedures when a plea of 'Guilty' or 'Not Guilty' is entered into. Rules 143 to 145 deal with the procedure after plea of 'Guilty', withdrawal of plea of 'Not Guilty' and after plea of 'Not Guilty'. Rule 147 confers a discretionary power upon the Court to call witness in reply to the defense only in the event it thinks necessary so to do in the interest of justice. Rule 147 provides for evidence of witnesses.
Rule 148 reads thus:-
'148. Verdict.- The Court shall after the evidence for prosecution and defense has been heard give its opinion as to whether the accused is guilty or not guilty of the charge or charges.'
In terms of Rule 148, thereforee, an opinion is required to be given. Such an opinion can be given only when reasons thereforee are assigned. In Summary Security Force Court, an accused is deprived of benefit of the service of a Law Officer in terms of Section 83 of the BSF Act.
Section 70 of the BSF Act provides that a Summary Security Force Court may be held by a Commandant of a unit and he alone would constitute the Court. He may, thereforee, discharge several functions. Duties to assign reasons in a case of this nature would be much more. It may be that Rule 148 of the BSF Rules may have to be read with Rule 149 of the BSF Rules, but while dealing with a situation of this nature where the liberty of a person is involved, in our opinion, Rule 148 thereof must be construed liberally. Forming an opinion although is a mental act, the same, when reduced in writing, should not be expressed in one word of 'Guilty' or 'Not Guilty'. In the Army Act and the Rules framed there under, i.e., the Army Rules, there is no provision like Rule 148 of the BSF Rules.
45. We, thereforee, are of the opinion that it is highly desirable that the Court constituted under the said Act assign reasons, correctness whereof can be judged by the confirming authority as also the Court exercising the power of judicial review.
The decision of the Apex Court in S.N. Mukherji's case (Supra) may have to be considered having regard to the rules applicable to doctrine of precedent.
In Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. : [2002]1SCR621 , it was held:-
'19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 791), Lord Mac Dermot observed:
'The matter cannot, of curse, be settled merely by treating the ipsissima vertra of Willes, J. as though they ere part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract rom the great weight to be given to the language actually used by that most distinguished judge.' In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, 'Lord Atkin's speech ..... ... is not to be treated as if it was statute definition. It will require qualification in new circumstances.' Megarry, J. in (1971) 1 WLR 1062 observed: 'One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.' And, in Herrington v. British Railways Board, {(1972) 2 WLR 537)} Lord Morris said:
'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.' Circumstances flexibility, one additional or different fact may make a world difference between conclusion in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
20. The following words of Lord Denning in the matter of applying precedents have become locus classicks:
'Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, thereforee, on which side of the line a case falls, the broad resemblance to another case is not all decisive.' xxx xxx xxx xxx xxx xxx 'precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.'
A decision, as is well known, an authority what it decides and not what can logically be deduced there from. (See Union of India and Ors. v. Dhanwanti Devi and Ors. : (1996)6SCC44 ; and Dr. Nalini Mahajan v. Director of Income Tax (Investigation) and Ors. : [2002]257ITR123(Delhi) and other connected matters).
46. We may notice decisions of the Apex Court relied upon by the learned counsel appearing on behalf of the respondent.
In R.K. Sharma's case (Supra), the Apex Court while considering a case where the respondent therein was charged with disobeying the command received from the Headquarters to visit the forward posts immediately 'to check alertness and report OK', by instead sending a JCO there and making false entries in tour diary to show that he himself had visited those posts and also of drawing ration for personal consumption of Rs. 930.37 from Quartermaster without paying for the same. The charges framed under Sections 63, 47(a) and 45 of the Act were found proved and despite the same, a lenient view had been taken by awarding a simple dismissal from service by the General Court Martial. The respondent in the said case was not only a highly ranked official, General Court Martial proceedings were held wherein all the defenses and all the procedural safeguards were complied with. The difference in approach of trials between the General Court Martial and a Summary Court Martial is well known. As indicated hereinbefore, therein an order of dismissal from service was passed upon taking a lenient view. It was in that situation that the Apex Court, distinguishing its earlier judgment in Ranjit Thakur v. Union of India, : 1988CriLJ158 , held:
'17. We are unable to accept the submissions of Mr. Sharma. It has to be immediately noted that the Company Commandants of 'C' and 'D' Companies had stayed back after getting permission from the Headquarters. The respondent did not apply for any permission. The further case that the respondent was required to stay back because a VIP was to visit the 'A' Company is also of no substance. The VIP was to visit only on 5th November. By that time the JCO, had been improperly deputed by the respondent had already visited the forward posts and come back. Thus the respondent could also have visited the post and returned well in time to receive in the VIP. It is also not possible to accept he case that the respondent had already visited two of the forward posts a few days earlier. It is to be seen that the third charge is in respect of making a false entry in the tour diary to show that the respondent had gone to the forward posts. That charge was proved. This showed that a false entry had been made to show that the respondent had gone to those posts when in fact he had not gone there. Not only did the respondent not obey the command from the Headquarters but he falsified records in order to make out a case that he had already gone to two of the forward posts. These are very serious offences. These are offences for which the General Court Martial would have been justified in awarding imprisonment. The General Court Martial took a lenient view by merely dismissing him from service. There was just no justification for interference by the High Court.'
Such is not the position here.
In Major G.S. Sodhi v. Union of India : 1991CriLJ1947 , the Apex Court held:-
'21. ... I must be noted that the procedure is meant to further the ends of justice and not to frustrate the same. It is not each and every kind of defect preceding the trial that can affect the trial as such. In the instant case we have referred to almost all the so-called defects pointed out in the procedure preceding the court-martial and we are not convinced even remotely that any one of them is of vital nature so as to affect the trial substantially.'
28. ... A combined perusal of all these rules would go to show that all that is required is that the delinquent should be apprised of the charges that he has to answer so that he is not caught unawares and handicapped in preparation of his defense. The main question is one of prejudice but in this case the charge-sheet shows that all the details are mentioned and the trial went on and that the petitioner participated in the trial duly. The next grievance is that these charge-sheets were not duly signed. We are mainly concerned with the final charge-sheet dated October 5, 1985. In that we find that all the details are mentioned elaborately and it is signed by Commanding Officer as well as Col. (Admn.) for the General Commanding Officer. thereforee, even if the tentative charge-sheet is not signed it does not make any difference. The same reasoning applies to the alleged non-compliance of Rule 25 read with Rule 22. The scope and object of these rules have been considered by us in the other case. In any event the summary of evidence was recorded and we find there is a substantial compliance. Even otherwise as held in the other case, the recording of summary of evidence is only to find out whether there is a prima facie case to convene the court-martial. In this case also the petitioner did not exercise his option as provided under Rule 25. thereforee, there is no violation of mandatory rules so far as the petitioner, who is an officer, is concerned vide Lt. Col. Prithi Pal Singh Bedi v. Union of India : 1983CriLJ647 case.'
The aforesaid decisions were rendered in fact situation obtaining therein.
47. We may now consider the merit of the matter.
The defense of the petitioner is as follows:-
'WRITTEN STATEMENT OF ACCUSED
I. No. 80003706 L/NK Nirmal Lakra pray that two charges have been leveled against me. Regarding the charge under Section 16D as to why I left post without order of Superior Officer it is stated that my superior officer was my post Commander. No. 84105325 HC Mohinder Singh was my superior officer and I left the post under his orders. It was my duty to obey his order.
Regarding why I crossed the IB under Section 40, there was no mistake on my part. When we both were coming in our own area, we were caught by deceit and taken to Bangladesh after tying our eyes. When our eyes were opened in Bangladesh, we came to know that we had been brought there after making us cross the border. We did not cross the border with our free will and we were made to cross the border.'
48. The petitioner has categorically stated that he did not cross over to Bangladesh willingly. The question as to whether he crossed over to Bangladesh willingly or he was taken there forcibly is a matter of evidence.
The petitioner, as noticed hereinbefore, was tried once and his trial was set aside by the DIG, BSF under Rule 161(1)(a) of the BSF Rules on the ground that Rule 45 of the BSF Rules had not been complied with.
49. The aforesaid Rules 45 and 161(1)(a) of the BSF Rules are to the following effect:-
'45. Hearing of the charge against an enrolled person. --(1) The charge shall be heard by the Commandant of the accused--
(a) The charge and statement of witnesses if recorded shall be read over to the accused if written statements of witnesses are not available, he shall hear as many witnesses as he may consider essential to enable him to determine the issue;
(b) The accused shall be given an opportunity to cross-examine the witnesses and make a statement in his defense.
(c) After hearing the charge under Sub-rule (1), the commandant may,--
(i) award any of the punishments which is empowered to award, or
(ii) dismiss the charge, or
(iii) remand the accused, for preparing a record of evidence or for preparing of an abstract of evidence against him, or
(iv) remand him for trial by a Summary Security Force Court:
Provided that, in cases where the Commandant awards more than 7 days imprisonment or detention he shall record the substance of evidence and the defense of the accused:
Provided further that, he shall dismiss the charge if in his opinion the charge is not proved or may dismiss it if he considers that because of the previous character of the accused and the nature of the charge against him it is not advisable to proceed further with it:
Provided also that in case of all offences punishable with death a record of evidence shall be taken.
161. Action by the Deputy Inspector-General.-
(1) Where the Deputy Inspector-General to whom the proceedings of a summary Security Force Court could have been forwarded under Rule 160, is satisfied that injustice has been done to the accused by reason of any grave irregularity in the proceedings or otherwise, he may,--
(a) set aside the proceedings of the Court; or. ... ... ... ...'
50. Section 75 of the BSF Act as also the Article 20 of the Constitution of India bars the second trial. The petitioner herein had suffered a part of the punishment as the punishment to suffer 4 months' rigorous imprisonment commenced immediately on signing of the SSFC in terms of Section 120 of the BSF Act.
51. Section 162 and 121 of the Army Act are in pari materia with Sections 15 and 75 of the BSF Act. In Surinder Singh's case (Supra), Dharmadhikari, J., as his Lordship then was, speaking for a Division Bench, held:-
'12. In the decisions of the Supreme Court in Maqbool Hussain v. State of Bombay, : 1983ECR1598D(SC) ; S.A. Venkataraman v. Union of India, : 1954CriLJ993 ; as reiterated in Mohammad Safi v. State of West Bengal, : 1966CriLJ75 , it has been held that 'the above constitutional provision contains a fundamental right based on the principle of 'autrefois convict' or 'double jeopardy'. The roots of that principle are to be found on the well established rule of the command law of England 'that where a person has been convicted of an offence by a Court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence. To the same effect is the ancient maxim 'namebix debet punierprouno delicto', that is to say that no one ought to be twice punished for one offence or as it is sometimes written 'pro evdem causa' that is for the same cause. This is the principle on which the party pursued has available to him the plea of 'autrefois convict' or 'autrefois acquit'. The plea of 'autrefois convict' or 'autrefois acquit' overthat the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned....the question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials.'
13. In the present case the petitioner, on the 'plea of guilty' was convicted, sentenced and has also suffered part of the sentence. The petitioner's second trial, thereforee, is prohibited by Section 121 of the Act as also Article 20(2) of the Constitution of India.'
52. It is not a mere co-incidence that even after re-trial, the petitioner was imposed with the same sentence. The submission of the learned counsel appearing on behalf of the respondents to the effect that the second trial in the aforementioned situation was not barred, cannot be accepted.
Mr. B.K. Mehta was the Commandant of the petitioner. he admittedly took charge of the petitioner from Bangladesh Rifles. He, thereforee, was a witness. He prepared and signed a receipt of giving and taking over. He had a role to play in the proceedings. He had not been examined as a witness. He could have been examined as a witnesses had he not initiated the proceedings.
53. The petitioner despite the fact that Mr. Mehta was a witness in the preceding was tried by him and convicted. In the aforementioned situation, it must be held that the petitioner had not received a fair trial. He could have been attached to some other unit for a fair and just trial in terms of Rule 47 of the BSP Rules. In the instant case, Mohinder Singh was the only witness, who could throw light on the incident. The allegation against the petitioner, it will bear repetition to state, that he willfully crossed over to Bangladesh Border. Whether crossing over to Bangladesh Border was willfully on the part of the petitioner or otherwise could have been proved by the said Mohinder Singh and nobody else. The cardinal principles of criminal trial, thereforee, had not been complied with in the instant case.
54. In the instant case, the appellate authority had not remitted the matter to the Court. There is no provision for re-trial. The entire proceeding, thereforee, was vitiated in law. There is galore evidence on the records, which would clearly go to show that the respondents had changed their stand from stage to stage.
55. Furthermore, from the Protest Note dated 13.01.1999, as noticed hereinbefore, the Company Commander, BDR Company, Tekkarghat alleged that two BSF personnels of Laughed camp including the petitioner illegally entered into Bangladesh with arms and ammunitions in drunk condition and engaged themselves in fighting with civilians. However, the said allegation by refuted by Reply of Protest Note dated 13.01.1999 by Company Commander, BSF, Barsora, as noticed supra, stating that the Jawans were on patrolling duty; they were not in drunk condition; and they were well inside Indian territory. Thus, a definite stand taken was to the effect that he on patrolling duty and well within Indian territory and on what basis, they come to the conclusion that they crossed the border willingly, cannot be deciphered. A similar stand of the respondents would be evident from the following Protest Note:-
'SUBJECT: PROTEST NOTE
1. Please accept our warm compliments and convey the same to all ranks under your able command.
2. I like to inform you that on 12 Jan. 99 at about 1830 BST two BSF personnel in uniform illegally entered into Bangladesh with their personal weapons in drunk condition near Takerghat Bazar 1000 yds west of our Takerghat BOP and were apprehended by civilians. Later on handed over to BDR patrol and kept confined in our Camp at Takerghat. Such incidents are never expected and clear violation of Indo-BangleBorder treaty 1975.
3. In view of the above I hereby lodge strong protest against such activities on the bordering areas. Repetition of such incidents in future may hamper the existing friendly and cordial relationship between the two bordering forces.
4. Assuring you of our best co-operation at all the time.
56. It is, however, a matter of great surprise that reply thereto had not been placed on records. Protest Notes had ben proved by the persons who were not the makers thereof. In that view of the matter, the same were inadmissible in evidence. In absence of the maker of the report, in our opinion, the contents thereof cannot be said to have been proved.
57. In view of our findings aforementioned, we are of the opinion that the decisions cited by Mr. Aggarwal have no application in the instant case. It is not a case where only some minor irregularities have been committed.
58. For the reasons aforementioned, we are of the opinion that the impugned order cannot be sustained, which is set aside accordingly. The petitioner in the facts and circumstances of this case is also entitled to costs, which is quantified at Rs. 5,000/-._