Holding

The Commandant possessed jurisdiction to order an additional RoE and the SSFC is not required to record reasons under Rule 149; therefore the conviction and punishment stand.

Summary

The case concerned a Head Constable of the Border Security Force (BSF) who was charged with "disgraceful conduct" for an alleged sexual assault on a junior constable during night duty in April 2006. The Commandant, noting a discrepancy in the date of the incident, ordered the preparation of an additional Record of Evidence (RoE) to clarify the facts, after which the Summary Security Force Court (SSFC) convicted the respondent and demoted him. The respondent challenged the conviction on two grounds: (i) that the Commandant lacked jurisdiction to order an additional RoE under the pre‑2011 version of Rule 51, and (ii) that the SSFC was required to record reasons for its finding under Rule 149. The Supreme Court held that the unamended Rule 51 did not prohibit the Commandant from seeking clarification and that the 2011 amendment was merely clarificatory, operating retrospectively, thereby validating the Commandant’s action. It also held that Rule 149 does not impose a duty on the SSFC to give reasons, relying on the precedent set in Union of India v. Dinesh Kumar. Consequently, the High Court’s order setting aside the punishment was set aside and the appeal was allowed.

Issues considered

Whether the Commandant had jurisdiction to direct the preparation of an additional Record of Evidence under the unamended Rule 51 of the BSF Rules, 1969.
Whether the Summary Security Force Court is obligated to record reasons for its finding of guilt under Rule 149 of the BSF Rules, 1969.

Legislation cited

Border Security Force Act, 1968s. 117, s. 24(a), s. 48, s. 64, s. 74(4)

Subjects

Service lawDisciplinary proceedingsBorder Security ForceRecord of EvidenceClarificatory amendmentJurisdictionReasoned ordersSexual misconductDisgraceful conductSummary Security Force Court

Judgment

1106 [2021] REPORTS
SUPREME COURT 11 S.C.R. 1106 [2021] 11 S.C.R.

A UNION OF INDIA AND ORS.
v.
MUDRIKA SINGH
(Civil Appeal No. 6859 of 2021)
B DECEMBER 03, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
A.S. BOPANNA, JJ.]
Border Security Force Act, 1968 – s.24(a) – BSF Rules 1969
– Unamended r.51 and amended r.51 (amendement in 2011) –
C
Disgraceful conduct – Punishment under – The incident in question
is alleged to have taken place on the night intervening 16 and 17
April 2006 – The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours when the respondent-Head
Constable is alleged to have committed an act of sexual assault on
D him – Record of Evidence (RoE) was submitted to the Commandant
– The Commandant noted that there was an inconsistency in the
statements of the witnesses as regards the date on which the incident
had occurred – The Commandant called for the preparation of an
additional RoE – Summary Security Force Court (SSFC) found
respondent guilty and demoted him to the rank of a Constable as a
E
punishment – The Appellate Authority-the Director-General of BSF
commuted the sentence of reduction to the rank of Constable by
substituting it with the following: (i) To forfeit 05 years services for
the purpose of promotion; (ii) To forfeit 07 years past service for
the purpose of pension; and (iii) To be severely reprimanded – A
F writ petition was filed by the respondent before the High Court,
which was allowed and order of the punishment was set aside –
Before the Supreme Court, two questions of law were raised: (i)
whether the Commandant has the jurisdiction to direct preparation
of an additional RoE; and (ii) whether the SSFC is under an
obligation to record reasons under Rule 159 of the BSF Rules 1969
G
when it determines the guilt of an accused – Held: The unamended
sub-rule (2) of Rule 51, as was applicable to the facts of the present
case, cannot be construed to impose a prohibition on the
Commandant to seek clarification, and for that purpose of ordering
an additional RoE, to facilitate or aid the further processing of the
H case – Rule 51(2) does not contain any such prohibition – On the
1106
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1107

contrary, sub-rule(1) to Rule 48 indicates that the officer ordering A
the RoE may either prepare an RoE himself or detail another officer
to do so – Sub-rule(4) to Rule 48 empowers the officer to ask any
question that may be necessary to clarify the evidence – If such a
power is conferred upon the officer ordering the RoE while preparing
the RoE himself, it would follow by necessary implication, that such
B
a power is available to the Commandant even when the RoE is
ordered to be prepared by another officer – The mere fact that a
specific provision empowering the Commandant to call for further
evidence was introduced in 2011 cannot result in the conclusion
that absent such a power being expressly incorporated, the power
did not vest in the Commandant – As far as obligation of SSFC to C
record reasons is concerned, Rule 149 does not either expressly or
by necessary implication impose a mandate on the SSFC to record
reasons when it renders its findings of guilt on a case referred to it
– Thus, the punishment which was imposed on the respondent is in
compliance with clauses (a) to (g) of s.48(1).
D
BSF Rules 1969 – Unamended r.51 and amended r.51
(amendement in 2011) – Effect of amendment in r.51 – Clarificatory
nature – The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours on the night intervening 16 and
17 April 2006 when the respondent-Head Constable is alleged to
have committed an act of sexual assault on him – Record of Evidence E
(RoE) was submitted to the Commandant – The Commandant noted
that there was an inconsistency in the statements of the witnesses as
regards the date on which the incident had occurred and ordered
an additional RoE – Whether the commandant prior to the
amendment of r.51 in 2011 had jurisdiction to direct preparation of F
an additional RoE – Held: When an amendment is purely clarificatory
or declaratory in nature, it is deemed to operate retrospectively –
The fact that the incident took place in the present case prior to the
date of the amendment, i.e., 25.11.2011, would make no difference
once the amendment, in the true sense of the expression, is construed
to be clarificatory in nature – Against this backdrop, the G
Commandant was acting within his jurisdiction in ordering an
additional RoE to clarify the date of the incident.
Interpretation of Statutes – Amendment to a statute –
Clarificatory nature – Held: An amendment to a statute or to statutory
rules may often be clarificatory in nature – It is clarificatory in the H
1108 SUPREME COURT REPORTS [2021] 11 S.C.R.

A sense that it expressly recognizes a power that already vests in the
authority – In those circumstances, when an amendment is purely
clarificatory or declaratory in nature, it is deemed to operate
retrospectively.
Service Law – Highlighting a rising trend of invalidation of
B proceedings inquiring into sexual misconduct, on hyper-technical
interpretations of the applicable service rules – Discussed.
Disposing of the appeal, the Court
HELD: 1. Jurisdiction of the Commandant

C 1.1 The unamended sub-rule (2) of Rule 51 of BSF Rules
1969, as was applicable to the facts of the present case, cannot
be construed to impose a prohibition on the Commandant to seek
clarification, and for that purpose of ordering an additional RoE,
to facilitate or aid the further processing of the case. Rule 51(2)
does not contain any such prohibition. On the contrary, sub-rule(1)
D to Rule 48 indicates that the officer ordering the RoE may either
prepare an RoE himself or detail another officer to do so. Sub-
rule(4) to Rule 48 empowers the officer to ask any question that
may be necessary to clarify the evidence. If such a power is
conferred upon the officer ordering the RoE while preparing the
E RoE himself, it would follow by necessary implication, that such a
power is available to the Commandant even when the RoE is
ordered to be prepared by another officer. The purpose of seeking
such a clarification is to facilitate the emergence of the truth as
regards the genesis of an incident which is the subject matter of
the enquiry. The mere fact that a specific provision empowering
F the Commandant to call for further evidence was introduced in
2011 cannot result in the conclusion that absent such a power
being expressly incorporated, the power did not vest in the
Commandant. [Para 20][1122-G-H; 1123-A-C]
1.2 An amendment to a statute or to statutory rules may
G often be clarificatory in nature. It is clarificatory in the sense that
it expressly recognizes a power that already vests in the authority.
In those circumstances, when an amendment is purely clarificatory
or declaratory in nature, it is deemed to operate retrospectively.
[Para 21][1123-C-D]
H
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1109

1.3 This Court has often recognized amendments to service A
rules as clarificatory in nature, thereby having a retrospective
operation. In our view, the power to order additional RoE is
incidental to realize the purpose of Rules 48 and 51. In any event,
residual powers under Rule 6 would protect this action. Since
the express power to direct additional RoE under Rule 51 was
B
incidental to the exercise of the existing powers, the amendment
to Rule 51 which was brought in 2011 must be construed to be
clarificatory. In fact, the High Court proceeded on this line of
analysis by observing that the amendment is clarificatory.
However, it chose to not take it to its logical conclusion on
the tenuous ground that no submission had been put forth by C
either side to throw light on the relevant provision. [Para 22]
[1125-B-D]
1.4 The fact that the incident took place in the present case
prior to the date of the amendment, i.e., 25 November 2011, would
make no difference once the amendment, in the true sense of D
the expression, is construed to be clarificatory in nature. Against
this backdrop, the Commandant was acting within his jurisdiction
in ordering an additional RoE to clarify the date of the incident.
As this is not a case of insufficient evidence. During the course
of the RoE, the respondent himself stood by the complainant‘s
version of the date and time on which the alleged incident took E
place, which was the night when the respondent was detailed to
Naka duty as Head Constable. The only issue for which additional
RoE was warranted was in regard to the confusion in regard to
the precise date on which the incident took place, considering
the confusion caused by the incident having occurred on the F
intervening night of 16 and 17 April 2006. Save and except for
this, the RoE which was prepared initially was comprehensive in
nature and contained all necessary details of the incident,
which were sufficient to sustain the final conclusion.
[Para 23][1125-D-G]
G
2. Recording of reasons
2.1 The decision in Dinesh Kumar which is based upon the
view of the Constitution Bench in S N Mukherjee and Som Datt
Dutta provides a clear answer and negates the finding of the High
Court on the mandate of recording reasons by the SSFC when H
1110 SUPREME COURT REPORTS [2021] 11 S.C.R.

A delivering its finding under Rule 149. Rule 149 does not either
expressly or by necessary implication impose a mandate on the
SSFC to record reasons when it renders its findings of guilt on a
case referred to it. [Para 29][1134-E-G]
S N Mukherjee v. Union of India (1990) 4 SCC 594 :
B [1990] 1 Suppl. SCR 44 – followed.
Shyam Sunder v. Ram Kumar (2001) 8 SCC 24:[2001]
1 Suppl. SCR 115; Zile Singh v. State of Haryana (2004)
8 SCC 1: [2004] 5 Suppl. SCR 272; Union of India v.
Dinesh Kumar (2010) 3 SCC 161: [2010] 2 SCR 830;
C Som Datt Datta v. Union of India AIR 1969 SC 414 :
[1969] SCR 177 – relied on.
S B Bhattacharjee v. S D Majumdar, (2007) 10 SCC
513 : [2007] 6 SCR 743; O P Lather v. Satish Kumar
Kakkar, (2001) 3 SCC 110 : [2001] 1 SCR 827; Union
D of India v. Dinesh Kumar (2010) 3 SCC 161: [2010] 2
SCR 830 – referred to.
Case Law Reference
[2010] 2 SCR 830 referred to Para 9(viii)
[2001] 1 Suppl. SCR 115 relied on Para 21
E
[2004] 5 Suppl. SCR 272 relied on Para 21
[2007] 6 SCR 743 referred to Para 22
[2001] 1 SCR 827 referred to Para 22
F [2010] 2 SCR 830 relied on Para 25
[1990] 1 Suppl. SCR 44 followed Para 26
[1969] SCR 177 relied on Para 26
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6859 of
2021.
G
From the Judgment and Order dated 18.12.2018 of the High Court
of Calcutta in FMA No.859 of 2010.
Ms. Madhavi Divan, ASG, Ms. Swarupama Chaturvedi, Satya
Lipsu Ray, Ms. Deepanwita Priyanka, Manish, Ms. Vaishali Verma, A.
H K. Sharma, Advs. for the Appellants.
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1111

Rabin Majumder, Ms. Mousumi Roy, Joydeep Mukherjee, Ms. A
Akansha Srivastava, Nand Ram, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A Introduction.................................................................3 B
B Submissions................................................................7
C Analysis....................................................................10
C.1 Jurisdiction of the Commandant............................13
C.2 Recording of reasons...........................................23 C
D Conclusion................................................................31

A Introduction
1. The Union of India and officials of the Border Security Force1 D
are in appeal against a judgment of a Division Bench of the Calcutta
High Court dated 18 December 2018 which quashed disciplinary
proceedings against the respondent and reinstated him to his initial position
in the BSF.
2. In April 2006, at the time of the alleged misconduct, the E
respondent was a Head Constable in the BSF and was deployed to the
Seventy-second Battalion. On 2 May 2006, the Commandant directed
the Deputy Commandant to prepare a record of evidence 2 against the
respondent for an offence constituting “disgraceful conduct” under
Section 24(a) of the Border Security Force Act 19683. The specific
allegation, as set out in the order, was as follows: F
“DISGRACEFUL CONDUCT OF AN UNNATURAL KIND
In that he, between 0200 Hrs to 0600 Hrs on 16.04.2006 while on
Naka duty under BOP Sahab Khan committed sodomy on the
person of No. [xyz] Const [xyz] of the sam(e) Battalion.”
G
3. The incident in question is alleged to have taken place on the
night intervening 16 and 17 April 2006. The complainant, a Constable in
* The Index is as per the Original Judgment.
1
“BSF“
2
“RoE“
3
“BSF Act 1968“ H
1112 SUPREME COURT REPORTS [2021] 11 S.C.R.

A the BSF, was on Naka duty between 02:00 to 06:00 hours when the
respondent is alleged to have committed an act of sexual assault on him.
The complainant submitted a written complaint on 19 April 2006. Under
the BSF Act 1968, such conduct is liable to be prosecuted under Section
24(a) which reads as follows:
B “24.Certain forms of disgraceful conduct.—Any person
subject to this Act who commits any of the following offences,
that is to say,—
(a) is guilty of any disgraceful conduct of a cruel, indecent or
unnatural kind; or
C […]
shall, on conviction by a Security Force Court, be liable to suffer
imprisonment for a term which may extend to seven years or
such less punishment as is in this Act mentioned.”

D 4. The RoE was prepared by the Deputy Commandant and
submitted to the Commandant. On 10 June 2006, the Commandant noted
that on a scrutiny of the RoE proceedings, it was found that there was
an inconsistency in the statements of the witnesses as regards the date
on which the incident had occurred. Hence, on 10 June 2006, the
Commandant called for the preparation of an additional RoE. Following
E the receipt of the additional RoE, the Commandant issued an order to
convene a Summary Security Force Court4 to try the respondent. In the
course of the evidence which was recorded pursuant to the direction of
the Commandant seeking an additional RoE, the complainant stated that
the incident took place on 17 April 2006. The respondent was provided
F with copies of the RoE, additional RoE and the charge sheet on 3 August
2006.
5. On 7 August 2006, the SSFC convened at the Headquarters of
the seventy-second Battalion of the BSF, at Narayanpur, Malda (West
Bengal) for enquiring into the charge under Section 24(a) the BSF Act
1968. The respondent pleaded not guilty to the charge. Four prosecution
G
witnesses were examined and the respondent was furnished with an
opportunity to cross-examine them and to call for defence witnesses.
The SSFC found the respondent guilty of the charge and demoted him to
the rank of a Constable as a punishment.
4
H “SSFC“
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1113
[DR. DHANANJAYA Y CHANDRACHUD, J.]

6. On 6 September 2006, the respondent filed a statutory petition A
under Section 1175 of the BSF Act 1968 before the Director-General of
the BSF to challenge the conviction recorded by the SSFC on 7 August
2006. The statutory petition was heard by the appellate authority – the
Director-General of BSF and was disposed of by an order dated 18
October 2006. While the charge against the respondent was found to
B
have been established, the punishment of reduction to the rank of
Constable was commuted, having regard to the fact that the respondent
had over 22 years of unblemished service with 21 rewards to his credit.
The respondent was informed that the Director-General of the BSF had
commuted the sentence of reduction to the rank of Constable by
substituting it with the following: C
“(i) ‘To forfeit 05 years services for the purpose of promotion’;
(ii) ‘To forfeit 07 years past service for the purpose of pension’;
and
(iii) ‘To be severely reprimanded.” D
7. The respondent moved the High Court at Calcutta under Article
226 of the Constitution. A Single Judge of the High Court, by an order
dated 7 May 2009, set aside the order of punishment on the ground that:
(i) The original RoE was insufficient to prove the charge; and
E
(ii) The order of the Commandant for preparing an additional
RoE was beyond jurisdiction.
8. The judgment of the Single Judge has been upheld by the
impugned judgment of the Division Bench of the High Court on 18
October 2018 on the ground that:
F
5
“117. Remedy against order, finding or sentence of Security Force Court.—(1)
Any person subject to this Act who considers himself aggrieved by any order passed
by any Security Force Court may present a petition to the officer or authority empowered
to confirm any finding or sentence of such Security Force Court, and the confirming
authority may take such steps as may be considered necessary to satisfy itself as to the
correctness, legality or propriety of the order passed or as to the regularity of any G
proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or
sentence of any Security Force Court which has been confirmed, may present a petition
to the Central Government, the Director-General, or any prescribed officer superior in
command to the one who confirmed such finding or sentence, and the Central Government,
the Director-General, or the prescribed officer, as the case may be, may pass such order
thereon as it or he thinks fit.” H
1114 SUPREME COURT REPORTS [2021] 11 S.C.R.

A (i) The Commandant did not have jurisdiction to direct the
preparation of an additional RoE under Rule 51 of the Border
Security Force Rules 19696 as it stood at the relevant time;
and
(ii) No reasons were furnished by the SSFC or the Appellate
B Authority - Director General of BSF - for holding the
respondent guilty.
B Submissions
9. Ms Madhavi Divan, Additional Solicitor General appearing on
behalf of the appellants has urged the following submissions:
C (i) The High Court has taken a hyper-technical view of the
matter and has failed to appreciate that the provisions of
the BSF Act 1968 and BSF Rules 1969 are robust enough
to cover the present case;
(ii) The Commandant directed the preparation of an additional
D RoE by his order dated 10 June 2006. It is evident from a
reading of the original RoE and additional RoE that this is
not a case of “insufficient evidence” as envisaged under
Rule 59 of the BSF Rules 1969, but a case of “clarificatory
evidence”;
E (iii) In a minor inaccuracy, the complainant had stated that the
incident took place on 16 April 2006 when he was detailed
to Naka duty, whereas the incident actually took place on
the intervening night of 16 April 2006 and 17 April 2006. It
was this inaccuracy which was sought to be corrected in
the additional RoE;
F
(iv) There is no provision under the statute or under the rules
prohibiting the Commandant from directing the recording
of additional evidence;
(v) In 2011, Rule 51 was amended by the insertion of clause
(2) under which an express power has been conferred on
G
the Commandant to direct the recording of further evidence.
This provision is clarificatory in nature;
(vi) In any event, Rule 6 is wide enough to cover any alleged
limitation in Rule 51. Rule 6 provides:

H 6
“BSF Rules 1969“
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1115
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“6. Case unprovided for. - In regard to any matter not specifically A
provided for in these rules, it shall be lawful for the competent
authority to do such thing or take such action as may be just and
proper in the circumstances of the case.”
(vii) The conclusion of the High Court that the Commandant did
not possess the authority to order the recording of additional B
evidence and that he had usurped the power of the superior
authority under Rule 59, is perverse; and
(viii) Neither the provisions of Rule 149 nor those of Section
117(2) require the SSFC or the Director-General to give
reasons in support of their decision. This principle is settled C
by the judgment of this Court in Union of India v. Dinesh
Kumar7.
10. On the other hand, Mr Rabin Majumder appearing on behalf
of the respondent has urged the following submissions:
D
(i) Rule 6 of the BSF Rules 1969 applies only to a matter which
is not specifically provided in the Rules. On the contrary,
Rule 51 specifically enunciates the power of the
Commandant. In the absence of specific conferment of
power to order the preparation of an additional RoE at the
material time, the Commandant had no power to do so; E
(ii) The power to record further evidence is conferred only on
a superior authority convening a Court under Rule 59;
(iii) Where a Commandant decides under Rule 51(2)(iv) to apply
to a competent officer to convene a court for the trial of a F
person, only such officer or authority can exercise any of
the powers provided in Rule 59 which includes returning
the case for recording further evidence, if the evidence on
record is insufficient;
(iv) As a result of the order of the Commandant, the evidence G
of the same witnesses was recorded twice over and without
the authority of law. In the process of doing so, the
Commandant usurped the power of the superior officer or
authority who exercises specific powers under Rule 59;
7
(2010) 3 SCC 161 H
1116 SUPREME COURT REPORTS [2021] 11 S.C.R.

A (v) The SSFC has not recorded any reason to support the
conclusion that the charge against the respondent was
proved;
(vi) The facts of the case would indicate that:

B (a) The RoE prepared by the officer detailed by the
Commandant by his order dated 2 May 2006 was
insufficient to prove the charge;
(b) The preparation of the additional RoE was ordered
to furnish the prosecution witnesses who had already
C been examined, cross-examined and re-examined –
with a second chance to prove the charge; and
(c) The authority which decided the statutory petition
under Section 117 has not found that the RoE
prepared in accordance with the order of the
D Commandant dated 2 May 2006 was insufficient to
prove the charge;
(vii) The decision of the SSFC is vitiated by incurable illegality,
since the order passed on the basis of additional RoE
prepared in terms of Commandant’s order dated 10 June
E 2006 was without jurisdiction;
(viii) The Division Bench of the High Court was justified in holding
that the SSFC is required to furnish a modicum of reasons
in support of its conclusion of guilt, and some application of
mind must be demonstrated. Rule 151 requires reasons to
F be furnished for awarding the sentence when a finding of
guilt is returned. A range of sentences has been prescribed
and reasons to support the order of a particular sentence is
necessary; and
(ix) The High Court was justified in holding that the finding of
G
guilt cannot be based on an ipse dixit order of the superior
officers. Unless the ultimate decision is informed by reason,
it will fall foul of Article 14 of the Constitution.
11. The rival submissions will now be analysed.
H
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1117
[DR. DHANANJAYA Y CHANDRACHUD, J.]

C Analysis A
12. Essentially, down to its core, the controversy in the present
case turns upon two aspects: firstly, whether the Commandant prior to
the amendment of Rule 51 in 2011 had jurisdiction to direct the preparation
of an additional RoE; and secondly, whether the finding of guilt which
has been recorded by the SSFC stands vitiated in the absence of reasons. B
Now, before we analyse the first of the above two facets, it becomes
necessary to understand the circumstances in which the Commandant
directed the Assistant Commandant to prepare an additional RoE on 10
June 2006.
13. On 2 May 2006, the Deputy Commandant of the Seventy- C
second Battalion was detailed to prepare a RoE on the allegation that
the respondent had committed an offence under Section 24(a) of the
BSF Act 1968. The allegation was that when he was on Naka duty from
02:00 hours to 06:00 hours on 16 April 2006, the respondent had committed
an act of sexual assault on a Constable. In the course of preparing the
RoE, the complainant, examined as PW1, reported that: D

“I joined 72 BN BSF on 19 Feb 2006 and further posted to B-Coy
of Unit B-Coy is deployed in Sahebkhale Sub-Sector. I went to
BOP Sahebkhali on 03 April 06 and afterward had been performing
duty in BOP Sahebkhali. I was on Naka/Patrolling duty from
0200Hrs to 0600 Hrs on 16 April 06 alongwith No.84001083 HC E
Mudrika Singh. At 0400Hrs on 16 April 06 while both of us were
sitting on OP Machan (OP No.2) HC Mudrika Singh caught my
Penis. HC Mudrika Singh bounded me to undergo sex with him
by force. Which incident I reported to Coy Commder on same
day at 0800 hrs. But I did not do sex with him.” F
Besides the complainant, the evidence included the statement of
PW2, who produced an extract of the General Duty Register on 17
April 2006. PW2 deposed that the respondent and the complainant left
for patrolling at 01:50 hours on 17 April 2006 and returned at 06:25 hours
on 17 April 2006. G
14. PW2’s evidence demonstrates that there was an evident error
in PW1’s reference to 16 April 2006. The incident took place in the night
which intervened 16 and 17 April 2006, i.e.,in the early hours of 17 April
2006. It was in this backdrop, that on 10 June 2006, the Commandant
ordered the Assistant Commandment to prepare an additional RoE so as
H
1118 SUPREME COURT REPORTS [2021] 11 S.C.R.

A to clarify the date on which the incident had occurred. Significantly,
after the SSFC’s order dated 7 August 2006 by which the respondent’s
rank was reduced to that of a Constable, in the course of his statutory
petition he clearly stated that:
“That I was charged with false allegation that at about 4.00 hrs
B on 17th April, 2006 while on Nake duty in AOR of BOP Sahebkhali
I caught hold of the Penis of No. [xyz] constable [xyz] of the
same Unit.”
The defence of the respondent was that:
“That I categorically say that because constable [xyz] was lying
C or Machan on 17.4.2006 at about 04.50 hrs. and was sleeping I
awoke him and told him to keep watch upon the weapons and
sets otherwise there can be stolen and I further told him that if he
sleeps during duty hours then I would report (sic) him to the (sic)
Commandant. I say that because I gave the warning to [xyz] for
his negligence in duty he made false allegation against me for
D
taking revenge.”
The above extract would make it abundantly clear that there was
no ambiguity, insofar as the respondent is concerned that the alleged
conduct with which he was charged, had taken place in the early hours
of 17 April 2006. As a matter of fact, the defence of the respondent also
E
pertains to the same incident on 17 April 2006 and the respondent
contended that the complainant had levelled a false allegation upon being
found to be sleeping while on duty.
15. In this backdrop, it becomes necessary to emphasize that the
additional RoE which was ordered by the Commandant was essentially
F in the nature of a clarification having regard to the discrepancy about
the date of the incident namely, whether it was on 16 or 17 April 2006.
This was evidently because the incident took place on the intervening
night of 16 and 17 April. As noted above, the respondent himself has in
the course of his statutory petition, sought to highlight the events which
G had transpired in the early hours of 17 April 2006 when he was on duty.
After settling the issue of insufficiency of evidence, we advert to the
two questions of law that have been raised in the appeal: (i) whether the
Commandant has the jurisdiction to direct preparation of an additional
RoE; and (ii) whether the SSFC is under an obligation to record reasons
under Rule 159 of the BSF Rules 1969 when it determines the guilt of an
H accused.
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1119
[DR. DHANANJAYA Y CHANDRACHUD, J.]

C.1 Jurisdiction of the Commandant A
16. The unamended Rule 51 of the BSF Rules 1969 provided as
follows:
“51. Disposal of case against an enrolled person by
Commandant after record or abstract of evidence.-
B
(1) Where an officer has been detailed to prepare the record of
evidence or to make an abstract thereof, he shall forward the
same to the Commandant.
(2) The Commandant may, after going through the record or
abstract of evidence including additional evidence: C
(i) Dismiss the charge, or
(ii) rehear the charge and award one of the summary
punishments; or
(iii) try the accused by a Summary Security Force Court
D
where he is empowered so to do, or
(iv) apply to a competent officer or authority to convene
a Court for the trial of the accused.”
Under sub-rule (1) of Rule 51, an officer who is detailed to prepare
the RoE has to forward it to the Commandant8. Thereafter under Rule E
51 (2), the Commandant may, after going through the record, proceed
with any of the course of actions detailed in (i) to (iv), which includes
trying the accused by an SSFC. The High Court has noticed that as a
result of the amendment in 20119, what is previously included in Rule
51(2) has been, in substance, incorporated in Rule 51(3) of the amended
BSF Rules 1969. A new sub-rule (2) has been introduced which reads F
as follows:
“(2) if the Commandant considers the evidence recorded
insufficient but considers that further evidence may be available,
he may remand the case for recording additional evidence.”
G
8
Section 2(1)(f) of the BSF Act 1968 defines it thus: “2. (1)(f) ‘Commandant’, when
used in any provision of this Act with reference to any unit of the Force, means the
officer whose duty it is under the rules to discharge with respect to that unit, the
functions of a Commandant in regard to matters of the description referred to in that
provision”
9
S.O. 2628(E) on 25 November 2011 H
1120 SUPREME COURT REPORTS [2021] 11 S.C.R.

A The amended Rule 51 of the BSF Rules 1969 thus provides for
the following:
“51. Disposal of case against enrolled person by Commandant
after record or abstract of evidence.—
(1) Where an officer has been detailed to prepare the record of
B evidence or to make an abstract thereof, he shall forward the
same to the Commandant.
(2) If the Commandant considers the evidence recorded insufficient
but considers that further evidence may be available, he may
remand the case for recording additional evidence.
C
(3) The Commandant may, after going through the record or
abstract of evidence including additional evidence, if any:—
(i) dismiss the charge after recording the reasons thereof[sic]; or
(ii) rehear the charge and award summary punishments; or
D
(iii) try the accused by a Summary Security Force Court where
he is empowered so to do:
Provided that the Commandant while convening a Court may
reframe the charge; or
E (iv) apply to a competent officer or authority to convene a Court
for the trial of the accused.”
17. The High Court inferred that “the incorporation of the
amendment demonstrates that at the relevant point of time, the
Commandant did not have the power to direct additional evidence to be
F recorded”. Yet, the High Court also observed that the 2011 amendment
to the BSF Rules 1969 could be of a clarificatory nature:
“At the same time, the amendment can be regarded to be
clarificatory in nature, in the sense that it was not required to be
specifically provided but was inherent to the general authority of
G the Commandant; and the amendment has been brought by way
of abundant caution and to clarify the powers of the Commandant
instead of conferring any new authority unto such officer.”
However, the High Court declined to inquire further into this line
of interpretation on the ground that “there is no submission which has
been put forth by either side to throw any light on the relevant provision”.
H
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1121
[DR. DHANANJAYA Y CHANDRACHUD, J.]

On this ground, the Division Bench held that the view of the Single A
Judge “appears to be a possible view” and does not call for interference.
The legal position needs to be analysed.
18. Rule 48 of the BSF Rules 1969 provides for the preparation of
a record of evidence:
“48. Record of evidence.- (1) The officer ordering the record B
of evidence may either prepare the record of evidence
himself or detail another officer to do so.
(2) The witnesses shall give their evidence in the presence of the
accused and the accused shall have right to cross-examine all
witnesses who give evidence against him: C

Provided that where statement of any witness at a court of inquiry
is available, examination of such a witness may be dispensed with
and the original copy of the said statement may be taken on record.
A copy thereof shall be given to the accused and he shall have the
right to cross-examine if he was not afforded an opportunity to D
cross -examine the witness at the Court of Inquiry.
(3) After all the witnesses against the accused have been
examined, he shall be cautioned in the following terms; “You may
make a statement if you wish to do so, you are not bound to make
one and whatever you state shall be taken down in writing and E
may be used in evidence.” After having been cautioned in the
aforesaid manner whatever the accused states shall be taken down
in writing.
(4) The accused may call witnesses in defence and the officer
recording the evidence may ask any question that may be F
necessary to clarify the evidence given by such witnesses.
(5) All witnesses shall give evidence on oath or affirmation:
Provided that, no oath or affirmation shall be given to the accused
nor shall he be cross-examined.
(6) (a) The statements given by witnesses shall ordinarily be G
recorded in narrative form and the officer recording the evidence
may, at the request of the accused, permit any portion of the
evidence to be recorded in the form of question and answer.
(b) Witnesses shall sign their statements after the same have been
read over and explained to them. H
1122 SUPREME COURT REPORTS [2021] 11 S.C.R.

A (6A) The provisions of section 89 of the Act shall apply for
procuring the attendance of the witnesses before the officer
preparing the Record of Evidence.
(7) Where a witness cannot be compelled to attend or is not
available or his attendance cannot be procured without an undue
B expenditure of time or money and after the officer recording the
evidence has given a certificate in this behalf, a written statement
signed by such witness may be read to the accused and included
in the record of evidence.
(8) After the recording of evidence is completed the officer
C recording the evidence shall give a certificate in following form :-
“Certified that the record of evidence ordered by...
..Commandant... .....................................................was made
in the presence and hearing of the accused and the provisions of
rule 48 have been complied with”.
D (emphasis supplied)
19. Rule 48 of the BSF Rules 1969 clarifies that an officer ordering
the RoE may either prepare it himself or detail any officer to do so. The
witnesses have to give their evidence in the presence of the accused
who has a right to cross-examine them. The accused may call witnesses
E in defence. An officer recording the evidence is empowered under sub-
rule (4) of Rule 48 to ask a question that may be necessary to clarify the
evidence given by a witness. It is on the basis of the RoE (or the abstract
of evidence, as the case may be) that the Commandant is empowered to
take the actions which are referred to in the unamended sub-rule (2) of
F Rule 51, as it then stood. Under Rule 51(2) which was applicable then,
the Commandant was empowered to dismiss the charge; re-hear the
charge and award one of the summary punishments; try the accused by
SSFC; or apply to a competent officer or authority to convene a court
for the trial of the accused.
20. The unamended sub-rule (2) of Rule 51, as was applicable to
G
the facts of the present case, cannot be construed to impose a prohibition
on the Commandant to seek clarification, and for that purpose of ordering
an additional RoE, to facilitate or aid the further processing of the case.
Rule 51(2) does not contain any such prohibition. On the contrary, sub-
rule(1) to Rule 48 indicates that the officer ordering the RoE may either
H prepare an RoE himself or detail another officer to do so. Sub-rule(4) to
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1123
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Rule 48 empowers the officer to ask any question that may be necessary A
to clarify the evidence. If such a power is conferred upon the officer
ordering the RoE while preparing the RoE himself, it would follow by
necessary implication, that such a power is available to the Commandant
even when the RoE is ordered to be prepared by another officer. The
purpose of seeking such a clarification is to facilitate the emergence of
B
the truth as regards the genesis of an incident which is the subject matter
of the enquiry. The mere fact that a specific provision empowering the
Commandant to call for further evidence was introduced in 2011 cannot
result in the conclusion that absent such a power being expressly
incorporated, the power did not vest in the Commandant.
21. An amendment to a statute or to statutory rules may often be C
clarificatory in nature. It is clarificatory in the sense that it expressly
recognizes a power that already vests in the authority. In those
circumstances, when an amendment is purely clarificatory or declaratory
in nature, it is deemed to operate retrospectively.10 For instance, a
Constitution Bench in Shyam Sunder v. Ram Kumar11 held that an D
amending act or a declaratory act need not explicitly mention its
declaratory nature to be operative retrospectively. Speaking on behalf
of the Constitution Bench, Justice V N Khare (as he then was) noted:
“39. Lastly, it was contended on behalf of the appellants that the
amending Act whereby new Section 15 of the Act has been E
substituted is declaratory and, therefore, has retroactive operation.
Ordinarily when an enactment declares the previous law, it requires
to be given retroactive effect. The function of a declaratory
statute is to supply an omission or to explain a previous
statute and when such an Act is passed, it comes into effect
when the previous enactment was passed. The legislative F
power to enact law includes the power to declare what was the
previous law and when such a declaratory Act is passed, invariably
it has been held to be retrospective. Mere absence of use of
the word “declaration” in an Act explaining what was the
law before may not appear to be a declaratory Act but if the G

10
G P Singh, Principles of Statutory Interpretation (13 th edn, 2012); Commissioner of
Income Tax v. Vatika Township, (2015) 1 SCC 1, para 32 (Constitution Bench);
Ghanshyam Mishra and Sons v. Edelweiss Asset Reconstruction Company, 2021
SCC OnLine SC 313 (three-judge Bench)
11
(2001) 8 SCC 24 H
1124 SUPREME COURT REPORTS [2021] 11 S.C.R.

A court finds an Act as declaratory or explanatory, it has to
be construed as retrospective. Conversely where a statute
uses the word “declaratory”, the words so used may not be
sufficient to hold that the statute is a declaratory Act as words
may be used in order to bring into effect new law.”
B (emphasis supplied)
12
In Zile Singh v. State of Haryana , Chief Justice R C Lahoti,
speaking for a three-judge bench elaborated on the principle of
retrospective operation applicable to clarificatory statutes thus:
“13…. Unless there are words in the statute sufficient to show
C the intention of the legislature to affect existing rights, it is deemed
to be prospective only — “nova constitutio futuris formam
imponere debet non praeteritis” — a new law ought to regulate
what is to follow, not the past. (See Principles of Statutory
Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p.
D 438.) It is not necessary that an express provision be made
to make a statute retrospective and the presumption against
retrospectivity may be rebutted by necessary implication especially
in a case where the new law is made to cure an acknowledged
evil for the benefit of the community as a whole (ibid., p. 440).

E 14. The presumption against retrospective operation is not
applicable to declaratory statutes…. In determining, therefore,
the nature of the Act, regard must be had to the substance rather
than to the form. If a new Act is “to explain” an earlier Act, it
would be without object unless construed retrospectively.
An explanatory Act is generally passed to supply an obvious
F omission or to clear up doubts as to the meaning of the previous
Act. It is well settled that if a statute is curative or merely
declaratory of the previous law retrospective operation is generally
intended…. An amending Act may be purely declaratory to clear
a meaning of a provision of the principal Act which was already
G implicit. A clarificatory amendment of this nature will have
retrospective effect (ibid., pp. 468-69).
16. Where a statute is passed for the purpose of supplying
an obvious omission in a former statute or to “explain” a

12
H (2004) 8 SCC 1
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1125
[DR. DHANANJAYA Y CHANDRACHUD, J.]

former statute, the subsequent statute has relation back to A
the time when the prior Act was passed. The rule against
retrospectivity is inapplicable to such legislations as are
explanatory and declaratory in nature.”
(emphasis supplied)
22. This Court has often recognized amendments to service rules B
as clarificatory in nature, thereby having a retrospective operation13. In
our view, the power to order additional RoE is incidental to realize the
purpose of Rules 48 and 51. In any event, residual powers under Rule 6
would protect this action. Since the express power to direct additional
RoE under Rule 51 was incidental to the exercise of the existing powers, C
the amendment to Rule 51 which was brought in 2011 must be construed
to be clarificatory. In fact, the High Court proceeded on this line of
analysis by observing that the amendment is clarificatory. However, it
chose to not take it to its logical conclusion on the tenuous ground that no
submission had been put forth by either side to throw light on the relevant
provision. D

23. In our view, and for the reasons that we have indicated, the
fact that the incident took place in the present case prior to the date of
the amendment, i.e., 25 November 2011, would make no difference once
the amendment, in the true sense of the expression, is construed to be
clarificatory in nature. Against this backdrop, the Commandant was acting E
within his jurisdiction in ordering an additional RoE to clarify the date of
the incident. As we have seen earlier, strictly speaking, this is not a case
of insufficient evidence. During the course of the RoE, the respondent
himself stood by the complainant’s version of the date and time on which
the alleged incident took place, which was the night when the respondent F
was detailed to Naka duty as Head Constable. The only issue for which
additional RoE was warranted was in regard to the confusion in regard
to the precise date on which the incident took place, considering the
confusion caused by the incident having occurred on the intervening
night of 16 and 17 April 2006. Save and except for this, the RoE which
was prepared initially was comprehensive in nature and contained all G
necessary details of the incident, which were sufficient to sustain the
final conclusion.

13
S B Bhattacharjee v. S D Majumdar, (2007) 10 SCC 513 (two-judge Bench); O P
Lather v. Satish Kumar Kakkar, (2001) 3 SCC 110 (two-judge Bench) H
1126 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 24. The submission of the respondent that the Commandant has
usurped the power of a superior officer or authority under Rule 59 is
patently incorrect. Rule 59 provides for the action which has to be taken
by a superior authority on receiving the application for convening a court.
In that context, Rule 59(1) provides as follows:
B “59. Action by a Superior Authority on receiving an
application for convening a court.- (1) As soon as a superior
officer receives an application for convening a court, he shall
scrutinise the charge and the evidence against the accused, where
necessary in consultation with the Chief Law Officer or a Law
C Officer and he:
(i) shall direct the Commandant to dismiss the charge where the
evidence against the accused is insufficient and further evidence
is not likely to be available and may direct him to do so if he
considers it inadvisable to proceed with the trial; or
D (ii) may return the case to Commandant for being tried by a
Summary Security Force Court or being dealt with summarily if
he considers that the same can be adequately so tried or dealt
with; or
(iii) may return the case for recording further evidence, if he
E
considers the evidence recorded insufficient but considers that
further evidence may be available; or
(iv) may dispose of the case administratively under chapter IV of
these rules if competent to do so, or refer it to the competent
F authority for disposal, where he is of the opinion that the charge
against a person is serious but the trial by Security Force Court is
inexpedient or not reasonably practicable for the reasons to be
recorded in writing; or
(v) may, after recording the reasons, dispose of the case
G administratively under chapter XIV A of these rules if competent
to do so, or refer it to the competent authority for disposal, where
he is of the opinion that the charge against the officer or the
subordinate officer, as the case may be, does not deserve to be
dismissed but also not so serious as to warrant trial by a Security
Force Court.
H
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1127
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(2) (a) In any other case he may either himself convene a Court A
or if he considers that a higher type of Court should be convened
and he is not empowered to convene such a Court, forward the
case to a higher authority with recommendation that such Court
may be convened.
(b) The higher authority on receiving the case may exercise any B
of the powers given in sub-rule (1) of this rule:
Provided that a superior officer or higher authority before
convening a General Security Force Court or a Petty Security
Force Court shall take the advice of the Chief Law Officer or a
Law officer. C
Provided further that the superior authority or higher authority
while convening a Court may reframe the charge sheet on which
the accused is to be tried.”
Clause (iii) of sub-rule (1) of Rule 59 indicates that one of the
courses of action open to the superior authority is to return the case for D
recording evidence if the evidentiary record is considered to be insufficient
but the superior authority considers that further evidence may be available.
The provisions of Rule 59(1)(iii) cannot be stretched to mean that absent
the conferment of a specific or express power to the Commandant in
similar terms, the Commandant had no jurisdiction to seek clarification E
or order an additional RoE. The power of the Commandant to do so is
implicit, as noticed earlier in Rules 48 and 51, read with Rule 6. Hence,
it cannot be postulated that by ordering an additional RoE, the
Commandant had usurped the power of a superior authority or acted
contrary to the jurisdiction conferred upon him.
F
C.2 Recording of reasons
25. The second ground on which the Division Bench of the High
Court held the findings of the SSFC to be vitiated is that under Rule 148,
the SSFC was required to furnish at least “a modicum of reasons”.
Rules 148 and 149 provide as follows:
G
“148. Verdict.- The Court shall after the evidence for prosecution
and defence has been heard, give its opinion as to whether the
accused is guilty or not guilty of the charge or charges.
149. Finding.- (1) The finding on every charge upon which
the accused is arraigned shall be recorded and except as H
1128 SUPREME COURT REPORTS [2021] 11 S.C.R.

A mentioned in these rules shall be recorded simply as a
finding of “Guilty” or of “Not Guilty”.
(2) When the Court is of opinion as regards any charge that the
facts proved do not disclose the offence charged or any offence
of which he might under the Act legally be found guilty on the
B charge as laid, the Court shall find the accused “Not Guilty” of
that charge.
(3) When the Court is of opinion as regards any charge that the
facts found to be proved in evidence differ materially from the
facts alleged in the statement of particulars in the charge, but are
C nevertheless sufficient to prove the offence stated in the charge,
and that the difference is not so material as to have prejudiced the
accused in his defence, it may, instead of a finding of “Not Guilty”
record a special finding.
(4) The special finding may find the accused guilty on a charge
subject to the statement of exceptions or variations specified
D
therein.
(5) The Court shall not find the accused guilty on more than one
of two or more charges laid in the alternative, even if conviction
upon one charge necessarily connotes guilt upon the alternative
charge or charges.”
E
(emphasis supplied)
The provisions of Rule 149 of the BSF Rules 1969 came up for
interpretation before a two-judge Bench of this Court in Union of India
v. Dinesh Kumar14. This Court was considering over sixty-two appeals
F from members of the BSF on the sole ground that orders of the SSFC
were illegal since they did not state the reasons for arriving at their
conclusion. Speaking on behalf of this Court, Justice V S Sirpurkar framed
the issues for consideration as follows:
“3. The common questions that falls for consideration in all these
appeals can be stated as under:
G
Whether the Summary Security Force Court (SSFC) is required
to give reasons in support of its verdict?
Similarly,

14
(2010) 3 SCC 161, (“Dinesh Kumar“)
H
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1129
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Whether the appellate authority under Section 117(2) is required A
to give reasons while considering the correctness, legality or
propriety of the order passed?”
The Court noted that under the scheme of the BSF Act 1968,
Section 64 provides for three kinds of courts, namely: (a) General Security
Force Courts; (b) Petty Security Force Courts; and (c) Summary Security B
Force Courts. Under Section 74(4) the SFCC may pass any sentence
except the sentence of death or imprisonment for a term exceeding the
time limits specified in sub-Section (5), which indicated that the SSFC
had the jurisdiction to try all offences, but had limited powers with respect
to the sentence15. This Court observed that Rule 149 forms a part of
Chapter XI of the BSF Rules 1969 which deals with the procedure for C
the SSFC. In contradistinction, Chapter IX of the Rules deals with the
procedure for all Security Force Courts. Chapter IX includes the amended
Rule 99(1), which mandates the recording of reasons. After the
amendment in 2003, the amended Rule 99(1) reads as follows:
“99. Record and announcement of finding.—(1) The finding D
on every charge upon which the accused is arraigned shall be
recorded and except as provided in these Rules, shall be recorded
simply as a finding of ‘Guilty’ or of ‘Not Guilty’. After recording
the finding on each charge, the Court shall give brief reasons
in support thereof. The Law Officer or, if there is none, the E
Presiding Officer shall record or cause to be recorded such brief
reasons in the proceedings. The above record shall be signed and
dated by the Presiding Officer and the Law Officer, if any.”
Therefore, under Rule 99(1), it became necessary for the SSFC
to give brief reasons in support of the findings, where the procedure
of the SSFC was being followed.” F

(emphasis supplied)
Noting the lack of an amendment to Rule 149, this Court held:
“17. It is needless to mention that Rule 99 will not apply to
SSFC. The procedure for the SSFC is provided in Chapter G
XI (Rules 133 to Rule 161), which alone is relevant here.
It must be noted here that though Rule 99 was amended
requiring authority of General Security Force Court or Petty
Security Force Court to give reasons in support of their
15
Id. at paras 7-10 H
1130 SUPREME COURT REPORTS [2021] 11 S.C.R.

A findings, no such amendment was made to Rule 149 which
is applicable in the case of the SSFC. Shri Malhotra, learned
Additional Solicitor General, therefore, rightly argued that since
Rule 149 was left intact in contradistinction to Rule 99, the
authorities of the SSFC were not required to give reasons in support
of their findings in all these cases and the High Court has gravely
B
erred in setting aside the orders of authorities on that count alone.”
(emphasis supplied)
While arriving at the above conclusion in Dinesh Kumar (supra),
the Court also placed reliance on the decision of a Constitution Bench in
C S N Mukherjee v. Union of India16.
26. The Constitution Bench in S N Mukherjee (supra)had
affirmed and followed the decision of a Constitution Bench of this Court
in Som Datt Datta v. Union of India17 which had considered the duty
of furnishing reasons on the Chief of Army Staff and the Union
Government when confirming the proceedings of a Court-martial under
D
the Army Act, 1950. The Court, in Som Datt Datta (supra), held that
the requirement of furnishing reasons does not apply in every case
concerning a finding by a statutory tribunal. Justice V Ramaswami (I),
speaking on behalf of the Constitution Bench, held:
“9. In the present case it is manifest that there is no express
E obligation imposed by Section 164 or by Section 165 of the Army
Act on the confirming authority or upon the Central Government
to give reasons in support of its decision to confirm the proceedings
of the Court Martial. Mr Dutta has been unable to point out any
other section of the Act or any of the Rule made therein from
F which necessary implication can be drawn that such a duty is
cast upon the Central Government or upon the confirming authority.
Apart from any requirement imposed by the statute or statutory
rule either expressly or by necessary implication, we are unable
to accept the contention of Mr Dutta that there is any general
principle or any rule of natural justice that a statutory tribunal
G should always and in every case give reasons in support of its
decision.
[…]

16
(1990) 4 SCC 594 (“S N Mukherjee”)
17
H AIR 1969 SC 414 (“Som Datt Datta“)
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1131
[DR. DHANANJAYA Y CHANDRACHUD, J.]

As already stated, there is no express obligation imposed in the A
present case either by Section 164 or by Section 165 of the Indian
Army Act on the confirming authority or on the Central
Government to give reasons for its decision. We have also not
been shown any other section of the Army Act or any other
statutory rule from which the necessary implication can be drawn
B
that such a duty is cast upon the Central Government or upon the
confirming authority. We, therefore, reject the argument of the
petitioner that the order of the Chief of the Army Staff, dated
May 26, 1967 confirming the finding of the Court Martial under
Section 164 of the Army Act or the order of the Central
Government dismissing the appeal under Section 165 of the Army C
Act are in any way defective in law.”
27. Following the decision in Som Datt Datta (supra), the
Constitution Bench in S N Mukherjee (supra) considered the provisions
of the Army Act and concluded that none of the provisions, either
expressly or by necessary implication, confer a duty on the aforesaid D
authorities to furnish reasons. Justice S C Agrawal, speaking on behalf
of the Constitution Bench, analysed the provisions of the Army Act 1950
on the anvil of the principles of natural justice:
“36. Reasons, when recorded by an administrative authority in an
order passed by it while exercising quasi-judicial functions, would E
no doubt facilitate the exercise of its jurisdiction by the appellate
or supervisory authority. But the other considerations, referred to
above, which have also weighed with this Court in holding that an
administrative authority must record reasons for its decision, are
of no less significance. These considerations show that the
F
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 decision-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, therefore, the G
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 to 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
H
1132 SUPREME COURT REPORTS [2021] 11 S.C.R.

A of a 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 of reasons is greater in a case where the
order is passed at the original stage. The appellate or revisional
B
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.
[…]
C 39. The object underlying the rules of natural justice “is to prevent
miscarriage of justice” and secure “fair play in action”. As pointed
out earlier the requirement about recording of reasons for its
decision by an administrative authority exercising quasi-judicial
functions achieves this object by excluding chances of arbitrariness
and ensuring a degree of fairness in the process of decision-making.
D
Keeping in view the expanding horizon of the principles of natural
justice, we are of the opinion, that the requirement to record reason
can be regarded as one of the principles of natural justice which
govern exercise of power by administrative authorities. The rules
of natural justice are not embodied rules. The extent of their
E application depends upon the particular statutory framework
whereunder jurisdiction has been conferred on the administrative
authority. With regard to the exercise of a particular power by an
administrative authority including exercise of judicial or quasi-
judicial functions the legislature, while conferring the said power,
may feel that it would not be in the larger public interest that the
F reasons for the order passed by the administrative authority be
recorded in the order and be communicated to the aggrieved party
and it may dispense with such a requirement. It may do so by
making an express provision to that effect as those contained in
the Administrative Procedure Act, 1946 of U.S.A. and the
G Administrative Decisions (Judicial Review) Act, 1977 of Australia
whereby the orders passed by certain specified authorities are
excluded from the ambit of the enactment. Such an exclusion can
also arise by necessary implication from the nature of the subject
matter, the scheme and the provisions of the enactment. The public
interest underly-ing such a provision would outweigh the salutary
H
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1133
[DR. DHANANJAYA Y CHANDRACHUD, J.]

purpose served by the requirement to record the reasons. The A
said requirement cannot, therefore, be insisted upon in such a
case.”
The Court conducted a detailed analysis of the provisions of the
Army Act 1950 and held there was no requirement of furnishing reasons
for the Chief of Army Staff or the Union Government when it confirmed B
proceedings of court-martial:
44. From the provisions referred to above it is evident that the
judge-advocate plays an important role during the course of trial
at a general court martial and he is enjoined to maintain an impartial
position. The court martial records its findings after the judge- C
advocate has summed up the evidence and has given his opinion
upon the legal bearing of the case. The members of the court
have to express their opinion as to the finding by word of mouth
on each charge separately and the finding on each charge is to be
recorded simply as a finding of “guilty” or of “not guilty”. It is also
D
required that the sentence should be announced forthwith in open
court. Moreover Rule 66(1) requires reasons to be recorded for
its recommendation in cases where the court makes a
recommendation to mercy. There is no such requirement in other
provisions relating to recording of findings and sentence. Rule
66(1) proceeds on the basis that there is no such requirement E
because if such a requirement was there it would not have been
necessary to make a specific provision for recording of reasons
for the recommendation to mercy. The said provisions thus
negative a requirement to give reasons for its finding and sentence
by the court martial and reasons are required to be recorded only
F
in cases where the court martial makes a recommendation to
mercy. In our opinion, therefore, at the stage of recording of
findings and sentence the court martial is not required to record
its reasons and at that stage reasons are only required for the
recommendation to mercy if the court martial makes such a
recommendation.” G
Accordingly, on an analysis of the scope and statutory purpose of
the Army Act, 1950, the Constitution Bench in S N Mukherjee (supra)
concluded that there was no requirement of furnishing reasons.

H
1134 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 28. After adverting to the principles enunciated by the Constitution
Bench in S N Mukherjee (supra) and Som Datt Datta (supra), this
Court in Dinesh Kumar (supra) in the context of Rule 149 of the BSF
Rules 1969, held:
“23.In this backdrop, it is clear that the provisions for the SSFC
B and the appellate authority are pari materia, more particularly in
case of Rule 149 and Section 117(2) of the Act, with the provisions
which were considered in both the above authorities. Therefore,
there cannot be any escape from the conclusion that as held
by the Constitution Bench, the reasons would not be
required to be given by the SSFC under Rule 149 or by the
C appellate authority under Section 117(2) of the Act. This
position is all the more obtained in case of SSFC, particularly,
as the legislature has chosen not to amend Rule 149, though
it has specifically amended Rule 99 w.e.f. 9-7-2003. It was
pointed out that in spite of this, some other view was taken by the
D Delhi High Court in Nirmal Lakra v. Union of India [(2003) 102
DLT 415] . However, it need not detain us, since Rule 149 did not
fall for consideration in that case. Even otherwise, we would be
bound by law declared by the Constitution Bench in S.N.
Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC
(Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445] .”
E
(emphasis supplied)
29. The decision in Dinesh Kumar (supra) which is based upon
the view of the Constitution Bench in S N Mukherjee (supra) and
Som Datt Dutta (supra) provides a clear answer and negates the finding
F of the High Court on the mandate of recording reasons by the SSFC
when delivering its finding under Rule 149. Rule 149 does not either
expressly or by necessary implication impose a mandate on the SSFC to
record reasons when it renders its findings of guilt on a case referred to
it.

G D Conclusion
30. In the above circumstances, the High Court was in error on
both the grounds which have weighed in its ultimate decision. There
was no error of jurisdiction on the part of the Commandant in seeking
clarification in regard to the date of the incident by calling for an additional
RoE. As we have noted, the respondent was not prejudiced since he
H
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1135
[DR. DHANANJAYA Y CHANDRACHUD, J.]

understood the allegations against him as pertaining to the events which A
transpired on the night when he was on duty, intervening 16 and 17 April
2006, and more specifically in the early hours of 17 April 2006.
31. On the second aspect, the decision of the High Court has
failed to notice the judgment of this Court in Dinesh Kumar
(supra)[which in turn is based on paragraph 40 of the principles enunciated B
by the Constitution Bench in S N Mukherjee (supra)]. The charge
against the respondent was found to have been duly substantiated by
evidence on the record. While dealing with the respondent’s statutory
petition under Section 117, the Director-General of BSF, reduced the
quantum of sentence. He was empowered to do so in accordance with
the provisions of Section 48 of the BSF Act 1968. Section 48 provides as C
follows:
“48. Punishments awardable by Security Force Courts.—
1) Punishments may be inflicted in respect of offences committed
by persons subject to this Act and convicted by Security Force
Courts according to the scale following, that is to say,— (a) death; D
(b) imprisonment which may be for the term of life or any other
lesser term but excluding imprisonment for a term not exceeding
three months in Force custody; (c) dismissal from the service; (d)
imprisonment for a term not exceeding three months in Force
custody; (e) reduction to the ranks or to a lower rank or grade or E
place in the list of their rank in the case of an under-officer; (f)
forfeiture of seniority of rank and forfeiture of all or any part of
the service for the purpose of promotion; (g) forfeiture of service
for the purpose of increased pay, pension or any other prescribed
purpose; (h) fine, in respect of civil offences; (i) severe reprimand
or reprimand except in the case of persons below the rank of an F
under-officer; (j) forfeiture of pay and allowances for a period
not exceeding three months for an offence committed on active
duty; (k) forfeiture in the case of person sentenced to dismissal
from the service of all arrears of pay and allowances and other
public money due to him at the time of such dismissal; (l) stoppage G
of pay and allowances until any proved loss or damage occasioned
by the offence for which he is convicted is made good. (2) Each
of the punishments specified in sub-section (1) shall be deemed to
be inferior in degree to every punishment preceding it in the above
scale.”
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1136 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Thus, the punishment which has been imposed on the respondent
is in compliance with clauses (a) to (g) of Section 48(1). For the above
reasons, we are of the view that the appeal should be allowed.
32. Before we conclude our analysis, we would also like to highlight
a rising trend of invalidation of proceedings inquiring into sexual
B misconduct, on hyper-technical interpretations of the applicable service
rules. For instance, the Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act 2013 penalizes several
misconducts of a sexual nature and imposes a mandate on all public and
private organizations to create adequate mechanisms for redressal.
However, the existence of transformative legislation may not come to
C the aid of persons aggrieved of sexual harassment if the appellate
mechanisms turn the process into a punishment. It is important that courts
uphold the spirit of the right against sexual harassment, which is vested
in all persons as a part of their right to life and right to dignity under
Article 21 of the Constitution. It is also important to be mindful of the
D power dynamics that are mired in sexual harassment at the workplace.
There are several considerations and deterrents that a subordinate
aggrieved of sexual harassment has to face when they consider reporting
sexual misconduct of their superior. In the present case, the complainant
was a constable complaining against the respondent who was the head
constable – his superior. Without commenting on the merits of the case,
E it is evident that the discrepancy regarding the date of occurrence was
of a minor nature since the event occurred soon after midnight and on
the next day. Deeming such a trivial aspect to be of monumental relevance,
while invalidating the entirety of the disciplinary proceedings against the
respondent and reinstating him to his position renders the complainant’s
F remedy at nought. The history of legal proceedings such as these is a
major factor that contributes to the deterrence that civil and criminal
mechanisms pose to persons aggrieved of sexual harassment. The High
Court, in this case, was not only incorrect in its interpretation of the
jurisdiction of the Commandant and the obligation of the SSFC to furnish
reasons under the BSF Act 1968 and Rules therein, but also demonstrated
G a callous attitude to the gravamen of the proceedings. We implore courts
to interpret service rules and statutory regulations governing the
prevention of sexual harassment at the workplace in a manner that metes
out procedural and substantive justice to all the parties.
33. The appeal is accordingly allowed and the impugned judgment
H and order of the Division Bench of the Calcutta High Court of 18
UNION OF INDIA AND ORS. v. MUDRIKA SINGH 1137
[DR. DHANANJAYA Y CHANDRACHUD, J.]

December 2018 and of the Single Judge of the Calcutta High Court on 7 A
May 2009 are set aside. In consequence, the writ petition filed by the
respondent shall stand dismissed.
34. The appeal is disposed of in the above terms.
35. Pending application(s), if any, shall stand disposed of.
B

Ankit Gyan Appeal disposed of.

C

D

E

F

G

H