Reva Khetrapal, J.
1. By this writ petition, the petitioner has prayed for quashing of the impugned orders dated 9.3.2002 and 18.12.2002 passed by the respondent No. 2 and 3, whereby the petitioner was dismissed from service for the alleged mis-conduct of absence from duty without leave for a period of 55 days from 14.11.2001 to 7.1.2002.
2. The facts succinctly stated are that the petitioner was enrolled as a Constable in the Border Security Force on 20.02.1990 through proper recruitment process. On 14.11.2001, allegedly, the petitioner absented from duty without leave. After his absence was noticed, the petitioner was directed to join his unit immediately vide 105 Bn BSF letter No. 2684-85 dated 16.11.01, 2777 dated 27.11.01, 2882 dated 10.12.01, 2984-85 dated 15.12.01 and 100-01 dated 06.01.02. Ultimately, the petitioner reported back in the unit on 7.1.2002 on his own. In the meantime, as per Section 62 of the BSF Act, a Court of Inquiry was ordered to find out the circumstances under which the petitioner had absented himself from duty without leave. After completion of the proceedings of the Court of Inquiry, in which the petitioner also deposed, the petitioner was found guilty of being absent without leave without sufficient cause. Accordingly, offence report was prepared and the petitioner was heard by his Commandant on 9.1.2002 under the BSF Rules. During the hearing, a prima facie case was found against the petitioner, thereforee, the Commandant ordered for preparation of record of evidence (ROE). The petitioner was handed over the copy of the charge sheet to prepare his defense. After completion of record of evidence, the Commandant decided to dispose of the case by holding Summary Security Force Court under BSF Rule 51(2)(3). Accordingly, the petitioner was informed about the same and was directed under BSF Rule 157 to nominate any person to perform the duties of friend of the accused.
3. The SSFC assembled on 21.01.2002 under Section 70 of the BSF Act. During his trial, the petitioner pleaded guilty to the charge against him. Before recording of the plea of the petitioner, the provisions of BSF Rule 142(2) were complied with and the petitioner was informed about the general effect of the plea of guilt and the defense and procedure which was to be followed consequent to the said plea of guilt. The court having satisfied itself that the petitioner understood the charge and the effect of plea of guilt, accepted and recorded the same. On completion of the SSFC proceedings, the petitioner was found guilty to the charge. Before awarding the sentence as per BSF Rule 101, the court took evidence and recorded the general character, age, service, previous punishment, the length of time he had been under arrest, reward etc. and thereafter awarded the sentence of dismissal from service.
4. After promulgation of the sentence dated 21.1.2002, the proceedings were sent to the Competent authority. In his submission for mitigation of punishment, the accused stated that he had committed the offence unintentionally as his mental condition was not proper. The Competent Authority observed that This showed that the petitioner did not want to plead guilty and under these circumstances, the Court should have substituted the plea of guilty by not guilty in terms of BSF Rule 143(4). thereforee, the DIG, being the competent Authority, set aside the SSFC trial proceedings in terms of BSF Rule 161(1)(a). The earlier order dated 21.1.2002 of dismissal of the petitioner from service was set aside on 14-02-2002 on account of procedural irregularity, and the petitioner was called back to join the unit. On his re-joining the unit, a fresh trial of the petitioner was conducted for the same offence.
5. In view of the fact that this time the petitioner did not make any statement in mitigation of punishment as made earlier and pleaded guilty, after compliance of BSF Rule 142 the petitioner was found guilty to the charge and was awarded the sentence of dismissal from service vide order dated 9.3.2002.
6. Being aggrieved by the findings of the SSFC and the sentence of dismissal imposed upon him, the petitioner preferred a statutory appeal but the same was rejected by the Competent Authority vide order dated 18.12.2002. The present writ petition has been filed impugning the orders dated 9.3.2002 and 18.12.2002 as arbitrary, unjustified, irrational, unreasonable and discriminatory, being in violation of the Articles 14, 16 and 21 of the Constitution of India.
7. The principal ground on which the petitioner has assailed the verdict and sentence imposed upon him by the Summary Security Force Court is that the respondent having punished the petitioner vide order dated 21.1.2002 and having withdrawn the said order of punishment, which was even otherwise illegal, by its order dated 14.2.2002, is estopped from punishing the petitioner again for the same mis-conduct. It was strenuously urged by learned Counsel for the petitioner that in view of the withdrawal of the order dated 21.1.2002 by the respondent by its subsequent order dated 14.2.2002, it was neither open nor permissible for the respondent to punish the petitioner for the same alleged mis-conduct again viz. unauthorized absence for a period of 55 days from 14.11.2001 to 7.1.2002. It was submitted that the impugned orders dated 9.3.2002 and 18.12.2002 had been passed by the respondent in a mechanical manner by repeating its earlier order dated 21.1.2002 in ditto without any application of mind and were hence void ab initio.
8. Counsel for the respondent on the other hand, contended that the order of dismissal from service passed by the Competent Authority on 9.3.2002 was an order passed in accordance with the BSF Act and Rules. It was submitted by him that de novo trial can be held in a case where proper procedure has not been followed. He further submitted that in view of the submission made by the petitioner for mitigation of punishment on the ground that he had committed the offence unintentionally as his mental condition was not proper, the Competent Authority had rightly observed that the court should have substituted the plea of guilty by not guilty in terms of BSF Rule 143(4). thereforee, the SSFC trial proceedings were set aside in terms of BSF Rule 161(1)(a). Accordingly, de novo trial of the petitioner was again required to be conducted against which there was no embargo. On merits, it was pointed out that the petitioner was a habitual absentee from duty and had been indicted five times from the year 1999 to the year 2001 for over staying his leave without sufficient cause. Finally, it was submitted that the order passed by the SSFC was fully commensurate with the gravity of the offence committed by the petitioner and while passing such sentence all the provisions of the BSF Act and Rules were followed in letter and spirit.
9. Upon hearing counsel for the parties and going through the records produced by the respondents, we find that the respondent No. 2, the Director General, Border Security Force in exercise of his powers under Section 161 of the BSF Rules, set aside the SSFC trial proceedings on the ground that the said proceedings were hit by the provisions of Rule 143(4) of the BSF Rules, in as much as the court was required by the provisions of sub Rule 4(a) of Rule 143 to alter the plea of guilty to that of not guilty and proceed with the trial accordingly in view of the statement of the petitioner made in mitigation of punishment that he had committed the offence unintentionally, as his mental condition was not proper. Rule 143, Sub-rule 4(a) reads as follows:
143(4)(a) If from the statement of accused, or record of evidence or otherwise, it appears to the Court that the accused did not understand the effect of his plea of Guilty, the Court shall alter the record and enter the plea of Not guilty, and proceed with the trial accordingly.
10. The mainstay of the petitioner's case is that the SSFC trial proceedings having been set aside and he having been reinstated in the service, it was not open to the respondents to order a fresh trial against him for the same offence. Our attention has been invited in this regard to the provisions of Section 75 of the BSF Act, which reads as follows:
75. Prohibition of second trial:(1) When any person subject to this Act has been acquitted or convicted of any 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 tried again for the same offence by a Security Force Court or dealt with under the said sections.
(2) When any person, subject to this Act, has been acquitted or convicted of an offence by a Security Force Court or has been dealt with under Section 53 or Section 55, he shall not be liable to be tried again by a criminal court for the same offence or on the same facts.
11. Relying upon the provisions of the aforesaid section of the BSF Act, learned Counsel for the petitioner submitted before us that the second trial of the petitioner was expressly prohibited by the BSF Act and was even otherwise unconstitutional, being in violation of Article 20(2) of the Constitution which provides that no person shall be prosecuted and punished for the same offence more than once. It was also submitted by him that the provisions of Section 75 of the BSF Act were in pari-materia with the provisions of Section 300(1) of the Code of Criminal Procedure which provides as under:
300. Persons once convicted or acquitted not to be tried for the same offence.-(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force, not be liable to be tried against for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.
12. Faced with this situation, learned Counsel appearing for the respondents has placed reliance upon a decision of the Calcutta High Court in Civil Rule No. 3236 (W)/73 titled as Sukhen Kumar @ Chandra Baisya v. Commandant, 71 Battalion, Border Security Force, to contend that neither Section 75(1) of the BSF Act nor Article 20(2) of the Constitution had any application whatsoever to the facts of the present case. In the case before the Calcutta High Court, the Inspector General, Border Security Force, West Bengal had set aside the proceedings of the Summary Security Force Court after recording his satisfaction that injustice had been done to the accused on account of grave irregularities in the proceedings. However, the petitioner who was released from the force custody was re-arrested on the same day before he joined his duties, and the Commandant made an application under Rules 51 and 52 of the BSF Rules praying for the sanction of the Inspector General for convening the Security Force Court for retrial of the petitioner on the same charges. The petitioner thereupon filed an application under Article 226 of the Constitution of India contending that the order of his re-arrest was illegal and without jurisdiction and that he could not be tried for the second time for the same offence in view of the provisions of Article 20(2) of the Constitution as also Section 75(1) of the BSF Act. Relying upon the judgment of the Supreme Court reported in 1957 (SCR) 650 titled Baijnath Prasad Tripathi v. The State Bhopal, the learned single Judge of the Calcutta held that neither Section 75(1) of the BSF Act nor Section 20(2) of the Constitution of India were attracted. It is, however, pertinent to mention at this juncture that in Baij Nath's case (supra), the Supreme Court was not seized of a case under the BSF Act, but was dealing with the question of whether a second trial was barred under Article 20(2) of the Constitution where the first trial had been declared void ab initio for want of proper sanction for initiation of prosecution. In such circumstances, it was held by the Supreme Court that the earlier proceedings having been held to be null and void, it could not be said that the accused was being prosecuted and punished for the same offence more than once.
13. In our considered view, there is a clear distinction, albeit a fine one, between cases where a court has no jurisdiction to try the offence, as for example, if the court is not competent to try the offence for want of sanction for prosecuting the accused or if the composition of the court is not proper as required for that type of court or if the court is illegally constituted of unqualified officers, and cases where the trial ipso facto is unsatisfactory as for example if during the course of the trial, inadmissible evidence is admitted or admissible evidence is shut out or proper procedure is not followed and the trial is consequently marred by grave irregularities which operate to the prejudice of the accused. In the former category of cases the trial would be no nest, being null and void from its very inception. In other words, there would be no trial in the eyes of law. In the latter category of cases, however, in our view, it would be deemed that the accused has withstood the trial and as such he cannot be tried again.
14. The question came up for consideration before the Federal Court in Basdeo Agarwalla v. King Emperor wherein it was held that if a proceeding is initiated without sanction, the same would be null and void.
15. In Yusofalli Mulla Noorbhoy V.R. it was held:.A court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law, and Section 14 prohibits the institution of a prosecution in the absence of a proper sanction. The learned Magistrate was no doubt competent to decide whether he had jurisdiction to entertain the prosecution and for that purpose to determine whether a valid sanction had been given, but as soon as he decided that no valid sanction had been given the court became incompetent to proceed with the matter. Their Lordship agree with the view expressed by the Federal Court in Agarwalla's case (supra)that a prosecution launched without a valid sanction is a nullity.
16. In the case of Baij Nath Prasad Tripathi (Supra), a Constitution Bench of the Supreme Court relying upon Yusofalli Mulla Noorbhoy's case ( supra) at page 654 of its report held as follows:
The Privy Council decision is directly in point, and it was there held that the whole basis of Section 403(1) was that the first trial should have been before a court competent to hear and determine the case and to record a verdict of conviction or acquittal; if the court was not so competent, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained.
17. In the case of Mohd. Safi v. State of West Bengal reported in (1965) 3 SCC 467, the Apex Court at page 470 of the report, held as follows:
6. It is true that Mr. Ganguly could properly take cognizance of the offence and, thereforee, the proceedings before him were in fact not vitiated by reason of lack of jurisdiction. But we cannot close our eyes to the fact that Mr. Ganguly was himself of the opinion- and indeed he had no option in the matter because he was bound by the decisions of the High Court that he could not take cognizance of the offence and consequently was incompetent to try the appellant. Where a court comes to such a conclusion, albeit erroneously, it is difficult to appreciate how that court can absolve the person arraigned before it completely of the offence alleged against him. Where a person has done something which is made punishable by law he is liable to face a trial and this liability cannot come to an end merely because the court before which he was placed for trial forms an opinion that it has no jurisdiction to try him or that it has no jurisdiction to take cognizance of the offence alleged against him. Where, thereforee, a court says, though erroneously, that it was not competent to take cognizance of the offence it has no power to acquit that person of the offence. An order of acquittal made by it is in fact a nullity.
18. It was further held in the aforesaid case, relying upon the Privy Council's decision in Yusofalli Mulla Noorbhoy (Supra):
The principle upon which the decision of the Privy Council is based must apply equally to a case like the present in which the court which made the order of acquittal was itself of the opinion that it had no jurisdiction to proceed with the case and thereforee the accused was not in jeopardy.
19. In a recent decision of the Supreme Court State of Karnataka through CBI v. C. Nagrajan Swamy : 2005CriLJ4534 , it was held by the Supreme Court that where the requisite sanction under Section 19 of the Prevention of Corruption Act, 1988 had not been granted by the Competent Authority for prosecution of the accused, a fresh proceeding after the accused was discharged on the ground of invalid sanction of prosecution could not be held to be barred by Section 300 of Code of Criminal Procedure. It was further held that even if a judgment of conviction or acquittal had been recorded, the same could not make any distinction for the purpose of invoking the provisions of Section 300 of Code of Criminal Procedure as even then it would be held to have been rendered illegally and without jurisdiction.
20. To the same effect is the decision of the Supreme Court in case of State of Goa v. Babu Thomas reported in (2005) SCC 130. In the said case, which was also a case under the Prevention of Corruption Act, 1988, the first sanction order under Section 19 of the said Act was issued by an Incompetent Authority. The second sanction order was thereafter issued retrospectively, after the cognizance was taken, but that too was issued by an Incompetent Authority. On such facts, the Apex Court held that when the Special Judge took cognizance, there was no sanction order under the law authorising him to take cognizance, and the want of availability of sanction order was not merely an irregularity, error or omission but was a fundamental error which invalidated the cognizance as without jurisdiction. This being so, having regard to the gravity of the allegations leveled against the accused ( respondent therein), the Supreme Court granted permission to the Competent Authority to issue a fresh sanction order by an authority competent under the rules and proceed afresh against the respondent from the stage of taking cognizance for the offence in accordance with law.
21. Keeping in view the aforesaid position of law, we are of the considered view that the question as to whether a fresh trial or de-novo trial can be initiated against the accused would depend upon the reason for the setting aside of the earlier trial. There are clearly two kinds of cases (1) where the earlier trial was void ab initio in the eyes of law having been initiated by a court inherently lacking in jurisdiction to conduct the trial to which reference has been made hereinabove and (2) where the trial was initiated before a competent court vested with jurisdiction to conduct the trial, but subsequently the trial was vitiated on account of procedural or other grave irregularity committed in the conduct of the trial. The present case is clearly a case of the second type where the conviction is quashed not for want of inherent jurisdiction in the court, but because the trial was unsatisfactorily conducted. The petitioner who had earlier pleaded guilty to the charge, in his statement for mitigation of sentence stated that his mental condition was not proper and, thereforee, the offence committed by him had been intentionally committed. Keeping in view the said statement of the petitioner and the provisions of Rule 143(4) read with Rule 161(1) of the BSF Rules, the court would have been well advised to alter the plea of Guilty of the petitioner to Not Guilty. The court not having done so, the proceedings were hit by the provisions of Rule 143(4) of the BSF Rules and the Appellate Authority, being the Dy.Inspector General, rightly concluded that the injustice had been done to the petitioner by reason of the grave irregularity in the proceedings. The petitioner accordingly was allowed to join back his duties and the sentence of his dismissal from service was set aside. So far, the order of Dy. Inspector General possibly cannot be faulted. What, however, followed was the second trial of the petitioner and this, to our mind, keeping in view the embargo imposed by Section 75 of the BSF Act and Article 20 of the Constitution of India was clearly impermissible.
22. The object and intent of Section 75 which has been incorporated in the BSF Act is clearly to prohibit a second trial of the accused, whether by the Security Force Court or by a criminal court, in all cases where the accused has been convicted or acquitted of an offence by a Security Force Court or by a criminal court or has been dealt with under Section 53 or Section 55. Section 75 consequently imposes a bar on second trial where the first trial was by a court of competent jurisdiction, though not where the first trial was void ab initio.
23. We are fortified in coming to above conclusion from Section 161 of the BSF Act which provides as under:
161. Action by the Deputy Inspector General-
(1) Where the Deputy Inspector General to whom the proceedings of a Summary Security Force Court 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
(b) reduce the sentence or commute the punishment awarded to one lower in the scale of punishment given in Section 48 and return it to the unit of the accused for promulgation.
24. A bare glance at the provisions of the aforesaid section shows that what is envisaged is the setting aside of proceedings by the Deputy Inspector General where grave irregularity has been committed by a Summary Security Force Court, thereby causing injustice to the accused. The provisions of the said section do not envisage the setting aside of the proceedings in a case where the court had no jurisdiction in the first place to deal with the matter, as for example where the court was illegally constituted or incompetent to deal with the matter on account of want of sanction by the competent authority or otherwise. The trial initiated by such a court against the accused would be no nest in the eyes of law, and quite obviously cannot stand in the way of initiation of de-novo trial.
25. In the case of the Major Dharam Pal Kukreti's case (Supra), the Supreme Court was dealing with the question of justification of a fresh trial by a Court Martial in view of the provisions of Section 121 of the Army Act, the provisions of which are in para materia with those of Section 75 of the BSF Act. The Supreme Court in the said case concurred with the findings of the High Court in the judgment in appeal, that a fresh trial by another Court Martial is not permissible, but held that in the circumstances of the case it would be open to the Central Govt. or the Chief of the Army Staff to have recourse to Rule 14 of the Army Rules. In para 13 of the Report it was observed as under:
13. It is pertinent to note that under Section 160 the confirming authority has the power to direct a revision of the finding of a court-martial only once. There is no power in the confirming authority, it if does not agree with the finding on revision, to direct a second revision of such finding. In the absence of any such confirmation, whether of the original finding or of the finding on revision, by reason of the provisions of Section 153 the finding is not valid. thereforee, in the case of the respondent the finding of the general court-martial on revision not having been confirmed was not valid. Could he, thereforee, be tried again by another court-martial on the same charges. Under Section 121, a person subject to the Army Act, who has been acquitted or convicted of an offence by a court-martial or by a criminal court, is not liable to be tried again for the same offence by a court-martial. It can well be argued that by reason of the provisions of Section 153 under which no finding or sentence of a general, district or summary general court-martial is valid except in so far as it is confirmed as provided by the Army Act a person cannot be said to have been acquitted or convicted by a court-martial until the finding of guilty or not guilty in his case has been confirmed by the confirming authority. There is, however, no express provision in the Army Act which empowers the holding of a fresh court-martial when the finding of a court-martial on revision is not confirmed.
26. Having considered the case of the petitioner from all angles, in our considered opinion, the impugned orders dated 9.3.2002 and 18.12.2002, passed by the respondents against the petitioner, deserve to be quashed. The petitioner, on the plea of guilty, was convicted, sentenced and dismissed from service on account of unauthorized absence from duty without leave. The said order was set aside by the Appellate Authority and the petitioner was directed to rejoin his duties. The petitioner having done so, the second trial of the petitioner for the same offence must be held to be prohibited by Section 75 of the BSF Act and Article 20(2) of the Constitution of India.
27. The petition, thereforee, succeeds and is hereby allowed. The proceedings of the Summary Security Court Martial leading to the passing of the orders dated 9.3.2002 and 18.12.2002 are hereby quashed. It is directed that the petitioner shall not be tried or prosecuted again for the same offence by court-martial. We also issue a writ of mandamus directing the respondents to reinstate the petitioner by passing orders effective from 9.3.2002 with full back wages, allowances and other consequent benefits including continuity of service. We, however, deem it expedient to clarify that nothing stated in this judgment shall be construed as an expression of opinion upon any disciplinary action against the petitioner which the respondents may deem fit to take in accordance with the BSF Act and Rules framed there under and in accordance with law.