UNION OF INDIA & OTHERSversusJOGESHWAR SWAIN

                  [2023] 12 S.C.R. 117 : 2023 INSC 802



                             CASE DETAILS

                     UNION OF INDIA & OTHERS
                                      v.
                          JOGESHWAR SWAIN
                  (Civil Appeal Nos. 8629-8630 of 2014)
                          SEPTEMBER 05, 2023
          [J. B. PARDIWALA AND MANOJ MISRA, JJ.]
                              HEADNOTES
      Issue for consideration: Whether the High Court was justified in
setting aside the dismissal order of the constable found guilty of misconduct,
since it was vitiated by infraction of the prescribed procedure as also was
based on no evidence.
      Service Law – Border Security Force Act, 1968 – Border Security
Force Rules, 1969 – rr. 49(3), 142(2) – Dismissal from service – Plea
of guilty – Procedural safeguards u/r. 142(2) – Non-compliance of –
Allegations against Border Security Force constable of clicking the
photographs of lady doctor while she was taking bath – Proceedings
initiated by the Summary Security Force Court wherein constable
pleaded guilty – Order of dismissal from service against the constable
– Set aside by the High Court on the ground of non-compliance of the
prescribed procedure as also no evidence – Correctness:
      Held: High Court was justified in finding the dismissal of the constable
on the basis of the plea of guilty unwarranted and liable to be set aside in
exercise of powers u/Art. 226 – Abstract of evidence recorded was not
provided to the constable and twenty-four hours’ time was not given to
him for reflection thus, a clear infraction of the proviso to sub rule (3) of
r. 49 – Confession, if any, made during the course of preparation of the
record of evidence, liable to be ignored – Minutes of the proceedings of
the SSFC was nothing but a verbataim reproduction of the statutory rule,
thus, non-compliance of r. 142(2) – Minutes of the proceedings recording
the plea of guilty did not bear the signature of the constable – In absence of
signature of the constable, pleading guilty appears to be an unnatural conduct
                                      117
118          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


and further dents the credibility of the SSFC proceeding – Furthermore,
there was no eye-witness of the incident; the camera was recovered from
some other person’s house; the witness to the keeping of the camera by the
constable, in her previous statement made no such disclosure; there was
no cogent evidence with regard to ownership of that camera; and, even the
reel was not developed to confirm the allegations – In these circumstances,
heavy burden lay on the department to satisfy the conscience of the Court
that the plea of guilty was recorded after due compliance of the procedure
prescribed and the confession was made voluntarily – More so, when the
record of evidence contained no worthwhile evidence regarding the guilt of
the constable, the SSFC ought to have advised the petitioner to withdraw the
plea of guilt – In view thereof, not a fit case for interference in exercise of
the jurisdiction u/Art. 136 – Constitution of India. [Paras 27, 28 and 35-39]
     Border Security Force Act, 1968 – s. 87 – General rules as to
evidence – Proceedings before the Security Force Court – Applicability
of the Evidence Act:
       Held: By virtue of s. 87 of the BSF Act, the general rules of evidence
as laid in the Evidence Act, subject to the provisions of the BSF Act, are
applicable to all proceedings before Security Force Court – Thus, by virtue
of s. 145 of the Evidence Act, witness may be cross examined as to previous
statements made by him – Evidence Act, 1872 – s. 145. [Para 28]
    Border Security Force Rules, 1969 – r. 142(2) – Plea of guilty –
Procedural safeguards u/r. 142(2):
      Held: Sub-rule (2) of r. 142 would indicate that on the accused pleading
guilty, before a finding of “guilty” is recorded, the SSFC is required to
ascertain whether the accused understands the nature and meaning of the
charge to which he has pleaded guilty as also must be informed of the general
effect of that plea and of the difference in procedure which will be made by
the plea of guilty – Even if the accused pleads guilty, if it appears from the
record or abstract of evidence or otherwise that the accused ought to plead
not guilty, the SSFC is required to advise him to withdraw that plea – Strict
adherence of the procedural safeguards laid down in sub-rule (2) of r. 142
is warranted before accepting a plea of guilty. [Paras 34 and 35]
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN                          119



       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8629-8630
of 2014.
     From the Judgment and Order dated 21.02.2013 of the High Court
of Delhi at New Delhi in WPC No.17430 of 2006 and dated 22.11.2013 in
RP No.394 of 2013.
     Appearances:
     R. Bala, Sr. Adv., Rajat Nair, Ms. Swati Ghildiyal, Sharath Nambiar,
Vinayak Sharma, Vishnu Shankar Jain, Arvind Kumar Sharma, Advs. for
the Appellants.
    Yasobant Das, Sr. Adv., Kedar Nath Tripathy, Anubhav Mehrotra,
Advs. for the Respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT
                               JUDGMENT
     MANOJ MISRA, J.
      1. These appeals are directed against the judgment and order of the
High Court of Delhi at New Delhi (in short, “the High Court”), dated
21.02.2013, by which W.P. (C) No. 17430 of 2006 filed by the respondent
(the original petitioner) was allowed, the punishment of dismissal imposed
upon the original petitioner was set aside and a direction was issued that the
original petitioner would be entitled to full consequential benefits except
salary to the extent of 50%. The appellants have also challenged the order
of the High Court dated 22.11.2013, by which the review petition of the
appellants seeking a review of the order dated 21.02.2013 was dismissed,
though certain observations made in the earlier order were recalled.
     FACTS
      2. The original petitioner/accused (the respondent herein) was a
Constable (General Duty) in the Border Security Force (in short “BSF”).
The case against him was that while he was posted as a security aide to a
lady doctor, on 17.06.2005, at about 7.45 pm, he clicked pictures of that
lady doctor while she was taking her bath. The allegations against him were
120          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


that,-- on the fateful day, the lady doctor requested him to leave her quarter
as she were to take a bath; while she was bathing, she noticed through the
window of her bathroom two camera flashes; suspecting foul play, she raised
an alarm; on her alarm, her mother went out but could find none; later,
the matter was reported to the Chief Medical Officer; the BSF authorities
investigated the matter and put the original petitioner under open arrest.
During investigation a camera was recovered from the residential quarter of
another person, who was a neighbour of that lady doctor. Thereafter, under
orders of the Battalion Commandant, proceedings were initiated against the
original petitioner in respect of commission of an offence under Section 40
of the Border Security Force Act, 1968 (in short, “BSF Act, 1968”), that
is for committing an act prejudicial to the good order and discipline of the
Force (BSF), and record of evidence was prepared. On completion of the
record of evidence, the Commandant remanded the original petitioner for
trial by a Summary Security Force Court (in short, “SSFC”). The SSFC
held its proceedings on 23rd July, 2005 wherein the original petitioner is
stated to have pleaded guilty. Based on that, the SSFC dismissed the original
petitioner from service.
      3. Aggrieved by his dismissal from service, the original petitioner
filed an appeal under Section 117 of the BSF Act, 1968 before the Appellate
Authority. In the appeal, the original petitioner refuted the allegations of
clicking pictures of the lady doctor while she was taking her bath and claimed
that,-- while recording the evidence, the prosecution witnesses were not
offered for cross-examination; there was no evidence forthcoming against
the original petitioner in the testimony of prosecution witnesses; the reel of
the camera allegedly used in commission of the offence was not developed;
the statement of PW-9 with regard to concealment of the camera in her
house by the original petitioner was contradictory to her previous statement
where no such allegation was levelled by her; nothing incriminating was
recovered from the possession of the original petitioner; the statement of
prosecution witnesses indicated that the original petitioner had denied the
allegations levelled against him, therefore, there was no reason for making
a confessional statement, hence, the same cannot be the sole basis for the
punishment. In the alternative, the original petitioner pleaded that he was
a young man, aged 31 years, who had diligently discharged his duties for
over 11 years without a complaint, therefore, even if the original petitioner
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 121
                           [MANOJ MISRA, J.]

is found guilty, a lenient view be taken by taking into account that he has
old parents and a family dependent on him.
      4. The aforesaid statutory appeal of the original petitioner was dismissed
by the Director General, BSF, New Delhi. The letter communicating
dismissal of the appeal recited that since the original petitioner had pleaded
guilty to the charge, the SSFC justifiably held him guilty and dismissed him
from service.
      5. Aggrieved by dismissal of his appeal, the original petitioner filed
writ petition before the High Court.
     FINDINGS OF THE HIGH COURT
      6. Before the High Court, the orders impugned in the writ petition
were questioned on two grounds: (a) that there were procedural infirmities
in conducting the proceedings and recording of evidence; and (b) that the
evidence recorded did not inculpate him. With regard to the first ground, it
was pointed out that Rule 60 of the Border Security Force Rules, 1969 (in
short, BSF Rules, 1969”) disqualified an officer from serving as a Court if
he was the officer who convened the Court; or is the Commandant of the
accused. The High Court observed that the SSFC was not only convened
but also presided over by the Commandant of the original petitioner which
vitiated the proceedings of the SSFC. The High Court, however, also
examined as to whether there was any worth-while evidence against the
original petitioner. After considering the statement of the witnesses recorded
while preparing the record of evidence, the High Court in paragraph 23 of
its judgment observed:
     “23. A close analysis of the evidence would highlight the following
     circumstances:
     (1) PW-1 noticed two camera flashes, whilst she was bathing, around
     7-45 PM on 17th June, 2005, after she asked the petitioner to leave
     the premises. Despite her alert, no one was caught. PW-2 corroborated
     this. PW-3 who reached the spot, also could not see anyone.
     (2) The petitioner was asked to report back immediately; he did so.
     During the intervening period, he went to Const. Kunnu’s house, and
     borrowed boots. This was verified from the latter’s wife and sister-in-
122          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


      law (PW 9) the same day. PW-9 did not mention anything about any
      camera or the petitioner having asked her to hide it, when officials
      enquired from her.
      (3) No incriminating object or article including the camera was seized
      from the petitioner’s possession. It is unclear as to who owned the
      camera seized by the respondents.
      (4) The petitioner was placed under open arrest the next day. He –
      according to PW-7, PW-8 and another witness, confessed to having
      clicked with the camera and having hidden it with PW-9. The next
      day, PW-9 made another statement, leading to recovery of the camera.
      This internal contradiction between the version of PW-9 assumes
      importance because in her first statement, she never said anything about
      the camera. Her deposition in the Record of Evidence proceeding was
      over a week later, i.e. 25.06.2005.
      (5) No written record of the confession said to have been made on
      18th June, 2005 exists;
      (6) Most importantly, the camera reel (though recovered on 18th June,
      2005) was never developed. It was the best evidence of the petitioner’s
      culpability.”
      7. In addition to the above observations, the High Court found
that while preparing the record of evidence, the last statement of the
prosecution witnesses was recorded on 29.06.2005 and on the same day,
without even giving twenty four hours’ time to the original petitioner to
reflect upon the evidence, as is the mandate of the proviso to sub rule
(3) of Rule 49 of the BSF Rules, 1969, the statement of the original
petitioner was recorded.
     8. The High Court noticed that the minutes of the proceeding recording
acceptance of guilt by the original petitioner before the SSFC was not signed
by the original petitioner.
      9. Taking all the aforesaid circumstances as well as the plea that no
confession was made by the original petitioner into consideration, the High
Court opined that there was no worthwhile evidence against the original
petitioner as to weigh on him to admit his guilt. The High Court thus allowed
the writ petition by the impugned order dated 21.02.2013.
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 123
                          [MANOJ MISRA, J.]

      10. After the writ petition was allowed by the High Court, the appellants
herein filed a review petition claiming therein that the view taken by the
High Court that there was infraction of Rules 60 and 61 of the BSF Rules,
1969 is erroneous because those provisions get attracted only if the trial
is by a “General” or a “Petty” Security Force Court, whereas the original
petitioner was tried by a “Summary” Security Force Court in terms of section
70 of the BSF Act, 1968.
      11. On consideration of the plea taken in the review petition, the High
Court recalled its observations regarding infraction of Rules 60 and 61 of
the BSF Rules, 1969 in conduct of the proceedings, but rejected the review
petition as the writ petition was allowed on consideration of the merits of
the prosecution evidence.
    12. Aggrieved by the orders of the High Court, the Union of India and
BSF administration are in appeal before us.
      13. We have heard Mr. R. Balasubramanian, learned senior counsel,
for the appellants; and Mr. Yasobant Das, learned senior counsel, for the
respondent (original petitioner).
     SUBMISSIONS ON BEHALF OF THE APPELLANTS
     14. The learned counsel for the appellants submitted:
     (a) The High Court exceeded its jurisdiction by appreciating the
         evidence led while preparing the record of evidence when the
         SSFC decided the matter on acceptance of guilt by the original
         petitioner.
     (b) There was no procedural defect in the trial or in the investigation,
         which preceded it.
     (c) The record of evidence indicated that though initially the original
         petitioner denied the allegations but, ultimately, he admitted his
         guilt. Otherwise also, from the statement of PW-9, recorded
         during preparation of the record of evidence, it was proved that
         the original petitioner had kept that camera in her house.
     (d) Adverse inference against the department could not have been
         drawn for not developing the reel of that camera because the
         original petitioner had admitted his guilt.
124           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


      (e) Absence of signature of the accused on the minutes of the
          proceedings recording acceptance of guilt by him does not violate
          any of the Rules contained in the then operating BSF Rules, 1969,
          as such requirement was inserted in the Rule with effect from
          25.11.2011.
     In a nutshell, the submissions on behalf of the appellants were that
there was no infraction of the procedure prescribed; the principles of
natural justice were duly observed; the decision was based on acceptance
of guilt; and since the original petitioner is part of a disciplined force and
was found guilty of clicking photographs of a lady doctor while she was
taking a bath, and whom he was required to protect, the punishment of
dismissal cannot be faulted. Consequently, the order of the High Court
deserves to be set aside.
      SUBMISSIONS ON BEHALF OF THE RESPONDENT
      15. Per Contra, on behalf of the respondent it was submitted that the
order passed by the High Court is just and proper based on appreciation of
the materials on record. Moreover, taking into account that there was no
eyewitness of photographs being clicked by the original petitioner and no
incriminating object or article was recovered from the original petitioner’s
possession, there was no reason for the original petitioner to accept his guilt.
Further, as the whole case of the department is based on the confession,
which is disputed by the original petitioner, and the minutes of the proceeding
recording confession is not signed by the petitioner, the High Court rightly
explored the evidence to find out whether in the circumstances making of
such a confession was probable or not. Otherwise also, before the SSFC, no
evidence was led and the record of evidence did not satisfactorily establish
the charge against the original petitioner and, therefore, a decision was
taken to remand the original petitioner for a trial by an SSFC. In these
circumstances, there was no occasion for the original petitioner to admit
his guilt. Consequently, once the High Court on overall assessment of the
materials placed on record has taken a sound view of the matter, it would
not be a fit case where the discretionary powers under Article 136 of the
Constitution of India be invoked to set aside an order whereby substantial
justice has been done.
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 125
                          [MANOJ MISRA, J.]

      16. In addition to the above, the learned counsel for the respondent
pointed out certain procedural infirmities, which, according to him, vitiated
the proceedings, namely,-
     (i) The first confessional statement was recorded in violation of
         Rule 49 (3) of the BSF Rules, 1969, inasmuch as copy of the
         abstract of evidence was not made available to the accused and
         the accused was not cautioned in the manner laid down in sub-rule
         (3) of Rule 48 before recording his statement. Moreover, it was
         recorded on the same day when the deposition of the last witness
         was recorded, that is, without giving 24 hours’ time for reflection,
         as is the mandate of the proviso to sub-rule (3) of Rule 49 of the
         BSF Rules, 1969;
     (ii) When the confession was recorded, the original petitioner was
          under open arrest, therefore such a confession would be hit by
          Section 26 of the Indian Evidence Act, 1872 which becomes
          applicable by virtue of Section 87 of the BSF Act, 1968;
     (iii) The SSFC comprised of the Commandant of the accused as such
           he was disqualified from being a part of the Court by virtue of
           Rule 60 of the BSF Rules, 1969. That apart, the Commandant had
           ordered for preparation of the record of evidence as well as for
           open arrest of the original petitioner therefore, conduct of trial
           by him amounted to gross violation of the principles of natural
           justice.
      In a nutshell, the submission of the learned counsel for the respondent
is that the dismissal of the original petitioner (the respondent herein) is
not only vitiated by infraction of prescribed procedure but is based on no
evidence. Therefore, the order passed by the High Court is not liable to be
interfered with in exercise of jurisdiction of this Court under Article 136 of
the Constitution of India.
     DISCUSSION
      17. We have considered the submissions and have perused the record.
As we notice that the order of dismissal from service was based on original
petitioner’s acceptance of his guilt before the SSFC, before proceeding
further, it would be useful to have a glimpse of the relevant provisions of
126          SUPREME COURT REPORTS                       [2023] 12 S.C.R.


the BSF Act, 1968 and the BSF Rules, 1969 concerning a “Security Force
Court” and proceedings before it.
     18. Section 2 (u) of the BSF Act, 1968 defines “Security Force Court”
as, “means a court referred to in section 64”. Section 64 of the BSF Act
provides:
      “… there shall be three kinds of Security Force Courts: -
      (a) General Security Force Courts;
      (b) Petty Security Force Courts; and
      (c) Summary Security Force Courts.”
     19. Section 87, which applies to all kinds of Security Force Courts,
provides that the Indian Evidence Act, 1872 (Act No. 1 of 1872) shall,
subject to the provisions of the BSF Act, 1968, apply to all proceedings
before a Security Force Court.
      20. In this case the dismissal order was passed by an SSFC. It would
thus be appropriate to have a look at the relevant provisions concerning an
SSFC. Section 70 provides: -
      “S.70. Summary Security Force Court.—
      (1) A Summary Security Force Court may be held by the Commandant
      of any unit of the Force and he alone shall constitute the Court.
      (2) The proceedings shall be attended throughout by two other persons
      who shall be officers or subordinate officers or one of either, and who
      shall not as such, be sworn or affirmed.”
     21. Punishments awardable by a Security Force Court are specified
in Section 48 of the BSF Act, 1968 which, inter-alia, includes the power to
dismiss from service.
     22. Section 141 (1) of the BSF Act, 1968 empowers the Central
Government to make rules for the purpose of carrying into effect the
provisions of the BSF Act, 1968. Sub-section (2) of Section 141, inter alia,
provides:
      “(2) In particular, and without prejudice to the generality of the
      foregoing power to frame such rules as may provide for,--
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 127
                           [MANOJ MISRA, J.]

     (a) ….
     (b) ….
     (c) …..
     (d) ……
     (e) the removal, retirement, release or discharge from the service of
     persons subject to this Act;
     (f) ……
     (g) the convening, constitution, adjournment, dissolution and sittings
     of Security Force Courts, the procedure to be observed in trials by
     such courts, the persons by whom an accused may be defended in
     such trials and the appearance of such persons thereat;
     (h)…….
     (i) the forms of orders to be made under the provisions of this Act
     relating to Security Force Courts and the awards and the infliction of
     death, imprisonment, and detention
     (j)…..
     (k) any matter necessary for the purpose of carrying this Act into
     execution, as far as it relates to the investigation, arrest, custody, trial,
     and punishment of offences triable or punishable under this Act
     (l)……
     (m) the convening of, the constitution, procedure and practice of,
     Courts of inquiry, the summoning of witnesses before them and the
     administration of oaths by such Courts
     (n). ...
     (o). …”
      23. In exercise of its powers conferred upon it by Section 141 of the
BSF Act, 1968, the Central Government notified BSF Rules, 1969. Chapter
VII of the BSF Rules, 1969 deals with investigation and summary disposal.
Rule 43 provides that where it is alleged that a person subject to the Act other
than an officer or a subordinate officer has committed an offence punishable
128          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


thereunder, the allegation shall be reduced to writing in the form set out in
Appendix IV. Whereas, if the offence is allegedly committed by an officer
or a subordinate officer then the allegation shall be reduced to writing in the
form set out in Appendix VI. Rule 45, inter alia, provides: -
      “45. Hearing of the charge against an enrolled person.—
      (1) The charge shall be heard by the Commandant of the accused in
      the following manner: -
      (i) The charge and statements of witnesses, if recorded, shall be read
      over to the accused;
      (ii) If written statements of witnesses are not available, or where
      the Commandant considers it necessary to call any witness, he shall
      hear as many witnesses as he may consider essential to enable him to
      determine the issue;
      (iii) Wherever witnesses are called by the Commandant, the accused
      shall be given opportunity to cross-examine them;
      (iv) Thereafter, the accused shall be given an opportunity to make a
      statement in his defence.
      (2) After hearing the charge under sub-rule (1), the Commandant
      may—
      (i)   award any of the punishments which he is empowered to award,
            or
      (ii) dismiss the charge, or
      (iii) remand the accused, for preparing a record of evidence or for
            preparation of an abstract of evidence against him, or


      (iv) remand him for trial by a Summary Security Force Court:
     Provided that, in case where the Commandant awards more than 7 days’
of imprisonment or detention he shall record the substance of evidence and
the defence of the accused ...”
     24. In the instant case, it is not in dispute that the Commandant on
21.06.2005 ordered for preparing the record of evidence.
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 129
                          [MANOJ MISRA, J.]

      25. Rule 48 deals with preparation of the record of evidence. It provides
that where the officer orders for the record of evidence, he may either prepare
the record of evidence himself or detail another officer to do so. Sub-rule
(2) of Rule 48 provides that 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. Sub rule (3) of Rule 48 provides
that 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 may be used in evidence.” After having
been cautioned in the aforesaid manner whatever the accused states is to be
taken down in writing. Sub-rules (4) to (6) of Rule 48 provide as follows:
     “(4) The accused may call witnesses in defence and the officer
     recording the evidence may ask any question that may be 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 be
     cross-examined.
     (6)(a) The statements given by witnesses shall ordinarily be 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) The witnesses shall sign their statements after the same have been
     read over and explained to them.”
      Sub-rule (8) of Rule 48 provides that after the recording of evidence
is completed the officer recording the evidence shall give a certificate in
the 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.”
      26. Rule 49 of the BSF Rules, 1969 provides for preparation of an
abstract of evidence. Sub-rule (2)(a) of Rule 49 provides that the abstract
of evidence, shall include,--- (i) signed statements of witnesses wherever
130          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


available or a precis thereof, or (ii) copies of all documents intended to be
produced at the trial. Sub-rule 2(b) of Rule 49 provides that where signed
statements of any witnesses are not available a precis of their evidence shall
be included. Sub-rule (3) of Rule 49 provides:
      “49 (3). A copy of the abstract of evidence shall be given by the officer
      making the same to the accused and the accused shall be given an
      opportunity to make a statement if he so desires after he has been
      cautioned in the manner laid down in sub-rule (3) of rule 48:
           Provided that the accused shall be given such time as may be
      reasonable in the circumstances but in no case less than twenty-
      four hours after receiving the abstract of evidence to make his
      statement.”
      27. In the instant case, from the materials brought on record we find
that the original petitioner was placed under open arrest on 20.06.2005. On
21.06.2005, the Commandant of 128 Battalion BSF, wherein the original
petitioner was posted, issued an order for recording of evidence. During the
course of recording of evidence, the last witness statement, that is of PW-10,
was recorded on 29.06.2005. On 29.06.2005 itself, the original petitioner
was asked to give his statement. According to the original petitioner, the
abstract of evidence was not provided to him and twenty-four hours’ time
was not given to him for reflection therefore, there was a clear infraction
of the proviso to sub rule (3) of Rule 49 of the BSF Rules, 1969. Hence,
according to the original petitioner, confession, if any, made during the
course of preparation of the record of evidence, is liable to be ignored.
      28. In our view, there appears substance in the aforesaid submission
of the learned counsel for the original petitioner. Moreover, in the instant
case after preparing the record of evidence, the Commandant in exercise of
his power under Rule 45(2)(iv) of the BSF Rules, 1969, vide order dated
05.07.2005, remanded the original petitioner for trial by an SSFC. In these
circumstances, the trial had to proceed as per Chapter XI of the BSF Rules,
1969 and, therefore, the statement, if any, recorded during investigation or
preparation of the record of evidence could have been used as a previous
statement of the witness for the purposes of cross-examining the witness as
and when the witness was examined before the Security Force Court. This
we say so, because by virtue of Section 87 of the BSF Act, 1968 the general
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 131
                          [MANOJ MISRA, J.]

rules of evidence as laid in the Evidence Act, 1872, subject to the provisions
of the BSF Act, 1968, are applicable to all proceedings before a Security
Force Court. Therefore, by virtue of Section 145 of the Evidence Act, 1872,
a witness may be cross examined as to previous statements made by him.
      29. Insofar as the proceedings against the original petitioner before
the SSFC are concerned, a perusal of the record would reflect that they
commenced on 23.07.2005 at the Headquarter of 128 Battalion, BSF. As per
record of the proceedings dated 23.07.2005, the charge-sheet was read out
and explained to the accused (original petitioner) and the accused was asked
whether he is guilty or not of the charge. As per record of the proceedings,
the answer of the accused is recorded in following terms:
     “Ans: Guilty.”
     After recording the answer as above, it proceeds to record:
     “** The accused having pleaded guilty to the charge, the court explains
     to the accused the meaning of charge(s) to which he has pleaded guilty
     and ascertains that the accused understands the nature of the charge(s)
     to which he has pleaded guilty. The court also inform the accused the
     general effect of that plea and the difference in procedure which will
     be followed consequent to the said plea. The court having satisfied
     itself that the accused understands the charge(s) and the effect of his
     plea of guilty, accepts and records the same. The provisions of Rule
     142(2) are complied with.”
     30. Thereafter, the proceeding on the plea of guilty is recorded in
following terms: -
     “The accused No. 959220216; Rank: Constable; Name: Jogeshwar
     Swain of 128 BN BSF, is found guilty of the charge.
     The record of evidence is read (translated), explained, marked “K”
     signed by the Court and attached to the proceedings.
     Q.- Do you wish to make any statement in reference to the charge or
     in mitigation of punishment?
     Ans. The accused says: I have committed an offence. Please pardon
     me. I will not repeat in future.
132           SUPREME COURT REPORTS                            [2023] 12 S.C.R.


      Q. Do you wish to call any witness as to character?
      Ans. No.”
     31. The minutes of the proceedings reflect that after the defence was
closed, the Court’s verdict came in following terms: -
            “Verdict of the Court
      “I am of the opinion on the evidence before me that the accused No.
      959220216 Rank Constable Name Jogeshwar Swain of 128 Bn BSF is
      guilty of the charge.”
     Thereafter before pronouncing the sentence, original petitioner’s past
record was considered as under:
      “It is within my own knowledge from the records of the Battalion that
      the accused has not been previously convicted by Security Force Court
      or Criminal Court …
      That the following is a fair and true summary of entries in his defaulter
      sheet exclusive of convictions by a Security Force Court or a Criminal
      Court
      Within last 12 months: Nil
      Since Enrolment: Nil
      That he is at present undergoing NIL sentence.
      That, irrespective of this trial, his general character has been satisfactory.
      That his age is 30 yrs, …
      His service is 10 years, 2 months, 15 days and his rank is Constable
      8-5-95. That he has been in arrest/confinement for NIL days. That he is
      in possession of the following decorations and rewards: - NIL”
     After considering the past record of the original petitioner, sentence was
awarded in following terms:
      “SENTENCE BY THE COURT
      Taking all these matters into consideration. I now sentence the Accused
      No. 959220216 Rank Constable; Name: Jogeshwar Swain of 128 Bn
      BSF to be dismissed from the service.
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 133
                          [MANOJ MISRA, J.]

     Signed at HQ 128 Bn BSF Patgaon, Ghty-17 on this 23rd day of July
     2005.
                                                         Sd/- Commandant.
                                                           Dt/- 23.07.2005”
      32. A perusal of the minutes of the proceedings of the SSFC dated
23.07.2005 would indicate that though the plea of guilty was recorded
during the course of the proceedings dated 23.07.2005 but the minutes are
not signed by the original petitioner. It is only signed by the Commandant
128 Battalion BSF, namely, Ghanshyam Purswani.
      33. Rule 142 of the BSF Rules, 1969 which fall in Chapter XI of the
BSF Rules, 1969 deals with the manner in which an SSFC is required to
record the plea of guilty. Rule 143 provides for the procedure after the plea
of guilty is recorded. The relevant portion of Rule 142 as it stood on the
date of the proceeding in question is reproduced below:
     “142. General plea of “Guilty” or “Not Guilty”.—
     (1) The accused person’s plea of “Guilty” or “Not Guilty” or if he
     refuses to plead or does not plead intelligibly either one or the other),
     a plea of “Not Guilty” shall be recorded on each charge.
     (2) If an accused person pleads “Guilty”, that plea shall be recorded
     as the finding of the Court; but before it is recorded, the Court shall
     ascertain that the accused understands the nature of the charge to which
     he has pleaded guilty and shall inform him of the general effect of that
     plea, and in particular of the meaning of the charge to which he has
     pleaded guilty, and of the difference in procedure which will be made
     by the plea of guilty and shall advise him to withdraw that plea
     if it appears from the record or abstract of evidence (if any) or
     otherwise that the accused ought to plead not guilty.”
     34. A plain reading of sub-rule (2) of Rule 142 would indicate that on
the accused pleading guilty, before a finding of “Guilty” is recorded, the
SSFC is not only required to ascertain whether the accused understands
the nature and meaning of the charge to which he has pleaded guilty but it
must also inform the accused of the general effect of that plea and of the
difference in procedure which will be made by the plea of guilty. That apart,
134          SUPREME COURT REPORTS                       [2023] 12 S.C.R.


even if the accused pleads guilty, if it appears from the record or abstract
of evidence or otherwise that the accused ought to plead not guilty, the
SSFC is required to advise him to withdraw that plea.
      35. Before acting on the plea of guilty, compliance of the procedural
safeguards laid down in sub-rule (2) of Rule 142 is important as it serves
a dual purpose. First, it ensures that before pleading guilty the accused
is aware of not only the nature and meaning of the charge which he has
to face but also the broad consequences that he may have to suffer once
he pleads guilty. This not only obviates the possibility of an uninformed
confession but also such confessions that are made under a false hope
that one could escape punishment by pleading guilty. The other purpose
which it seeks to serve is that it ensures that confessions do not become
an easy way out for deciding cases where marshalling of evidence to
prove the charge becomes difficult. It is for this reason that sub-rule (2)
of Rule 142 requires an SSFC to advise the accused to withdraw the plea
of guilty if it appears from the examination of the record or abstract of
evidence that the accused ought to plead not guilty. Since, the procedure
laid in sub-rule (2) of Rule 142 serves an important purpose and is for the
benefit of an accused, in our view, its strict adherence is warranted before
accepting a plea of guilty.
      36. Reverting to the facts of this case, we notice from the record
that the minutes of the proceedings of the SSFC dated 23.07.2005 do
not indicate as to what advise was rendered to the accused with regard to
the general effect of the plea of guilty taken by him. The minutes dated
23.07.2005 are nothing but a verbatim reproduction of the statutory
rule. There is no indication as to how the accused was explained of the
broad consequences of him pleading guilty. Verbatim reproduction of the
statutory rule and nothing further, in our view, is no compliance of the
provisions of sub-rule (2) of Rule 142 of the BSF Rules, 1969. Therefore,
we are of the view that the appellants cannot draw benefit from the minutes
of the proceedings as to canvass that the plea of guilty was accepted after
due compliance of the requirements of sub-rule (2) of Rule 142 of the
BSF Rules, 1969.
     37. Further, the record of the proceedings of SSFC dated 23.07.2005
does not bear the signature of the accused. No doubt, the requirement of
      UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 135
                          [MANOJ MISRA, J.]

having the signature of the accused on the minutes recording plea of guilty
was first introduced by insertion of the proviso to sub-rule (2) of Rule 142
with effect from 25.11.2011. But there existed no embargo in obtaining
signature of the accused to lend credence to the making of the plea of
guilty. Absence of signature of the accused in this case assumes importance
because here the accused denies taking such a plea and looking at the
available evidence, pleading guilty appears to be an unnatural conduct.
At the cost of repetition, it be observed that the case against the petitioner
was in respect of clicking photographs of a lady doctor while she was
taking her bath. There was no eye-witness of the incident; the camera was
recovered from some other person’s house; PW-9, a witness to the keeping
of the camera by the accused (i.e., the original petitioner), in her previous
statement made no such disclosure; there was no cogent evidence with
regard to ownership of that camera; and, above all, even the reel was not
developed to confirm the allegations. In these circumstances, when there
was a challenge to the making of such confession before the High Court, a
very heavy burden lay on the non-petitioners (appellants herein) to satisfy
the conscience of the Court that the plea of guilty was recorded after due
compliance of the procedure prescribed by the BSF Rules, 1969. As we
have already noticed that there was no proper compliance of the procedure
prescribed by sub-rule (2) of Rule 142 of the BSF Rules, 1969, absence of
signature of the accused in the minutes further dents the credibility of the
SSFC proceeding. The High Court was therefore justified in looking at the
evidence to find out whether punishment solely on the basis of confession
(i.e., plea of guilty) was justified.
      38. In this context, the High Court meticulously examined the record
of evidence prepared under the direction of the Commander to come to
the conclusion that except for the statement of PW-9 that the camera was
hidden by the original petitioner, there was no worthwhile evidence in
respect of his culpability. The High Court also noticed that even PW-9
was not consistent, as during investigation PW-9 had not made any such
disclosure that the original petitioner had hidden the camera in the house
from where it was recovered. What is important is that the house from
where the camera was recovered was not the house of the original petitioner
but of another constable who had his house adjoining the quarter where
the lady doctor had taken her bath. Interestingly, there was no evidence
136          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


led to indicate that the said camera was of the original petitioner. In these
circumstances, where was the occasion for the original petitioner to make
confession of his guilt when there was hardly any evidence against him.
Admittedly, none had seen him clicking photographs and the lady doctor
also did not inculpate the original petitioner though she might have
suspected the original petitioner. Further, we notice that while preparing
the record of evidence also, plea of guilty of the original petitioner was
recorded, which the original petitioner claims to have been obtained under
duress and without giving him sufficient time to reflect upon the evidence
as is the mandate of the proviso to sub-rule (3) of Rule 49 of the BSF
Rules, 1969. At this stage, we may remind ourselves that while preparing
the record of evidence the statement of last witness was recorded on
29.06.2005 and on that day itself, without giving twenty-four hours’ time
for reflection, as is required by the proviso to sub-rule (3) of Rule 49 of the
BSF Rules, 1969, alleged confessional statement of the original petitioner
was recorded. In these circumstances, when the original petitioner had
raised a plea before the High Court that his confession was involuntary
and that in fact no confession was made by him, there was a serious
burden on the non-petitioners (i.e., the appellants herein), to satisfy the
conscience of the High Court that there had been due compliance of the
procedure and that the confession was made voluntarily. More so, when
the record of evidence contained no worthwhile evidence regarding the
guilt of the original petitioner. In the aforesaid backdrop, the SSFC ought
to have advised the original petitioner to withdraw the plea of guilt as per
provisions of sub-rule (2) of Rule 142 of the BSF Rules, 1969.
      39. In light of the discussion above and also taking into account that
the minutes of the proceedings recording the plea of guilty did not bear
the signature of the original petitioner, in our considered view, the High
Court was justified in finding the dismissal of the original petitioner on
the basis of the plea of guilty unwarranted and liable to be set aside in
exercise of powers under Article 226 of the Constitution of India. The
High Court was also justified in not re-opening the proceeding from the
stage where the error crept in by noticing that it would serve no useful
purpose as there was hardly any evidence on record and nearly a decade
had passed since the date of the incident.
       UNION OF INDIA & OTHERS v. JOGESHWAR SWAIN 137
                           [MANOJ MISRA, J.]

      40. For all the reasons above, we do not find it a fit case for interference
in exercise of our jurisdiction under Article 136 of the Constitution of India.
The appeals are dismissed. Parties to bear their own costs.


Headnotes prepared by:                                          Appeals dismissed.
Nidhi Jain