W.P.(C) 3872/2022 Page 1 of 32

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 08.01.2026

Judgment delivered on: 10.03.2026

Judgment uploaded on: As per Digital Signature~

+ W.P.(C) 3872/2022

MURARI KUMAR SINGH .....Petitioner

versus

UNION OF INDIA & ANR. .....Respondents

Advocates who appeared in this case

For the petitioner: Mr. Mahboob Inayati and Mr.Shoaib

Khan, Advocates

For the Respondents: Mr. Nirvikar Verma, SPC with Mr. Varun

Kumar, Advs. alongwith Mr. Paramveer

Singh, D.C.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

JUDGMENT

V. KAMESWAR RAO, J.

1.This writ petition has been filed challenging the order dated

21.06.2021 passed by the Summary Security Force Court (‘SSFC’, for short)

dismissing the petitioner from service. The prayer of the petitioner in this

writ petition is as under:-

“a) Pass an order/writ/direction setting aside

impugned orders dt 21.06.2021 & 26.12.2021.

W.P.(C) 3872/2022 Page 2 of 32

b) Pass an order/writ/direction reinstating the

petitioner with continuity in service from the date he

was dismissed from the service with full salary.”

2.The facts as noted from the writ petition are that the petitioner

enrolled in Border Security Force (‘BSF’, for short) as Constable on

31.03.2008. During his service, he was awarded commendation certificate

for operational achievement in Anti Naxal Operations. In September 2016,

the petitioner completed CI-CDO Course (Counter Insurgency-Commando)

training in Hazaribagh, Jharkhand.

3.On 29.04.2021, the petitioner had accidently fired 01 (one) round of

5.56 mm from INSAS rifle/his personal weapon without any provocation.

On the same day, the Commandant BSF passed the order appointing Rakesh

Kumar Paliwal, DC, Adjutant (‘Adjt’, for short) to record evidence and

submit the report by 06.05.2021.

4.On 30.04.2021, Rakesh Kumar Paliwal, DC, Adjt prepared a detailed

report, before recording evidence of witnesses, alleging that the petitioner

had fired 01 round on 29.04.2021 without any provocation and that the

petitioner was in state of intoxication at the time of the event. On 03.05.2021

to 11.05.2021, the Record of Evidence (RoE) of prosecution witnesses was

recorded by Mr. Paliwal.

5.On 18.06.2021, the Commandant after going through the RoE ordered

the SSFC to assemble on 21.06.2021 at 11:00 Hrs. The petitioner vide same

order was placed under ‘open arrest’ with effect from 10:00 Hrs on

20.06.2021 till conclusion of trial. On 21.06.2021, the petitioner was made

W.P.(C) 3872/2022 Page 3 of 32

to appear before the Commandant and his signature was taken on papers. On

the same day, he was informed that, he has been held guilty of charges under

Section 40 of the BSF Act, 1968 for firing 01 round without any provocation

and under Section 22(e) of the Act for being in the state of intoxication

while on duty. Pursuant to the finding of the SSFC, the petitioner, on

21.06.2021, was dismissed from service and was handed over some

documents including RoE.

6.Aggrieved by the impugned order, the petitioner filed the statutory

appeal before the Inspector General (‘IG’, for short). On 26.12.2021, the IG

dismissed the statutory appeal by upholding that the petitioner had plead

‘guilty’ of the charges, which according to the petitioner, he did not plead

guilty. Hence, the present petition has been filed challenging the order of

dismissal and the rejection of the appeal with a prayer to reinstate him in the

service.

7.It is the submission of the learned counsel for the petitioner, Mr.

Mahboob Inayati that, the petitioner was informed in the morning of

20.06.2021 that the Commandant had placed him under ‘open arrest’ and he

would be tried by the SSFC on 21.06.2021.

8.According to the counsel, the evidence was recorded without

affording reasonable opportunity to the petitioner. The petitioner was not

allowed to take the assistance of any counsel or competent officer or ‘friend

of the accused’ to assist him in cross examination of witnesses. It is also his

case that the evidence was recorded in English which the petitioner does not

understand.

W.P.(C) 3872/2022 Page 4 of 32

9.Another contention of the counsel is that, Mr. Rakesh Kumar Paliwal,

DC, Adjt. recorded the evidence beyond 06.05.2021 without being granted

any extension from the Commandant. At the time of the SSFC, the petitioner

was under ‘open arrest’ in the campus and he was not allowed to move out

of the campus and was put under strict surveillance.

10.He submitted that the petitioner was not given a fair and proper

opportunity to defend himself, in contravention to Rule 63(1) BSF Rules,

1969, i.e., the accused who has been remanded for trial shall be afforded

proper opportunity for preparing his defence and shall be allowed proper

communication with his defending counsel/officer.

11.He submitted that the decision of the Commandant to initiate SSFC

against the petitioner vide order dated 18.06.2021 and to place him under

‘open arrest’ from 20.06.2021 at 10:00 hrs till conclusion of trial, has

curtailed the petitioner’s opportunity to prepare defence, to communicate

with his defending officer and witnesses. He also stated that the petitioner

was informed that, he can appoint the counsel at his own expense or ‘friend

of the accused’ by the next day, but the Commandant despite knowing the

fact that the Battalion is in isolation and it would not be possible for the

petitioner to engage any counsel within 24 hours, had ordered the trial to

move forward.

12.He submitted that the ‘friend of the accused’/Sanjay Anuj Panna,

Deputy Commandant, nominated by the petitioner was on the advice of the

Commandant, himself. During the trial, Mr. Panna did not render any

assistance to the petitioner. He also submitted that Mr. Panna did not even

W.P.(C) 3872/2022 Page 5 of 32

discuss the matter with the petitioner or made any submission on behalf of

the petitioner before the SSFC.

13.He submitted that the petitioner was arrested 24 hours prior to the

beginning of trial, in contravention to Rule 38(1) of BSF Rules, i.e. the

accused shall remain under arrest during the trial. The ‘open arrest’ of the

petitioner just one day after intimation about the commencement of the trial

and 25 hours before the trial, deprived the petitioner from getting a fair

opportunity to prepare his defence and has caused stress and trauma.

14.Mr. Inayati contended that the evidence of the witnesses and other

proceedings were recorded in English language and the petitioner has no

command on English language and the same were not translated to the

petitioner, which is in violation of Rule 134 of BSF Rules. He also

contended that, a fair trial cannot be expected when the accused does not

even understand the evidence and record, because of the language in which

the evidence was recorded. He also submitted that the whole trial was

conducted in biased and arbitrary manner.

15.It is the submission of Mr. Inayati that, on 29.04.2021 i.e. on the day

of incident, the Commandant passed the order appointing Mr. Paliwal, DC,

Adjt., to record evidence and to submit the same by 06.05.2021. Mr.

Paliwal, DC, Adjt. prepared a report dated 30.04.2021 i.e. before recording

evidence of witnesses alleged that the petitioner had fired 01 round on

29.04.2021 without any provocation and that the petitioner was in an

intoxicated state. He submitted that, Mr. Paliwal should not have been

allowed to record the evidence of the witnesses as he was the officer who

W.P.(C) 3872/2022 Page 6 of 32

preponed the report and would be influenced by the report dated 30.04.2021,

making him partial and prejudiced against the petitioner. He also submitted

that, it is the RoE which is taken into account by the Commandant under

Rule 51 of the BSF Rules to decide whether the charges should be dismissed

or the accused should be tried.

16.He submitted that the judgment of this Court inBalwinder Singh v.

Union of India & Ors in W.P.(C) No.7875/2007, had set aside the order of

dismissal when the accused was not provided fair opportunity to defend. He

also submitted that the impugned order has been passed in violation of

principles of natural justice and statutory mandate of Rule 163(1) & Rule

157 of BSF Rules as the petitioner was not provided legal assistance or

‘friend of the accused’ to assist the petitioner in preparing his defence to the

charges and allegations levelled against him.

17.Mr. Inayati submitted that the plea of ‘guilty’ was wrongly recorded

despite the fact that the statement of the petitioner and the record of the

evidence shows that the petitioner did not understand the plea of ‘Guilty’.

He submitted that this Court in the case ofBanwari Lal Yadav v. Union Of

India & Anr in W.P.(C) 10446/2004, has upheld the decision of the DIG,

who had altered the plea of ‘guilty’ to ‘not guilty’ wherein the accused had

pleaded ‘guilty’ in his statement for mitigation of punishment, wherein the

accused had stated that he had committed the offence unintentionally as his

mental condition was not proper.

18.Another submission of Mr. Inayati was that the petitioner in his

statement has for mitigation of punishment stated that,‘I will not commit

W.P.(C) 3872/2022 Page 7 of 32

mistake again’which shows that the petitioner did not intend to plead

‘guilty’ rather wanted to convey that the incident occurred due to a mistake

and it was inadvertent and unintentional on the part of the petitioner.

19.He submitted that, it has been the case of the petitioner throughout

that, 01 round got fired accidentally without any criminal intention or

knowledge and if an accidental fire has happened in his 13 years of service,

the dismissal of the petitioner would be disproportionate, unjustified and

unreasonable.

20.He also submitted that the Rule 143(4)(a) of the BSF Rules,

categorically state that, if from the statement of the accused, or from the

record of evidence, or otherwise, it appears to the Court that the accused did

not understand the effect of his plea of ‘Guilty’, the Court shall alter the

record and enter a plea of ‘Not Guilty’ and proceed with the trial.

21.With regard to the issue of intoxication, Mr. Inayati submitted that the

same is false and frivolous as there was no blood test taken from the

petitioner to prove that the petitioner was intoxicated and as per the

statement before the doctor, the smell was of the drink he had consumed last

night.

22.He seeks prayers as made in the petition.

23.On the other hand, Mr. Nirvikar Verma, Senior Panel Counsel for the

respondents would submit that the petitioner along with Head Constable

Shamsher Chand (Guard Commander), Constable (GD) Ashok Lava and

Constable (GD) Dhojen Choudhary was detailed to perform Magazine

W.P.(C) 3872/2022 Page 8 of 32

sentry duty at Bn HQ 174 Bn BSF, Maheshpur, Raiganj West Bengal from

19:00 hrs on 28.04.2021 to 19:00 hrs on 29.04.2021, turn by turn.

24.On 29.04.2021 at about 03:57 hrs, the petitioner drew his personal

weapon 5.56 mm INSAS Rifle, Butt No. 335, Body No. 16844395 and 01

Magazine along with 20 rounds from the Kote and took over the charge of

Unit Magazine Guard Duty at about 04:00 hrs. At about 04:50 hrs, the

petitioner fired 01 round from his personal weapon inside the premises of

Unit Quarter Guard without any provocation. On hearing the sound of firing,

Main Sentry and Guard Commander of Quarter Guard reached the spot and

snatched the rifle from the petitioner and unloaded the magazine.

25.The matter was reported to the superior authorities, who then reached

the place of occurrence and analysed the situation and found the petitioner in

the state of intoxication. The Guard Commander of Quarter Guard informed

the incident to superior officials telephonically. Accordingly, the ASI/

Adjutant of the Unit immediately reached the place of occurrence and

analysed the matter and found the petitioner in an intoxicated condition

lying on his bed at Quarter Guard room. After few minutes, the Unit

Adjutant also reached the Quarter Guard and carried out immediate spot

verification.

26.A disciplinary action was initiated against the petitioner and on

29.04.2021, the petitioner was heard under Rule 45 of the BSF Rules for

committing two offences i.e. the first charge under Section 40 of the BSF

Act, 1968 for‘An act prejudicial to good order and discipline of the Force’

and the second charge under Section 22(e) of the BSF Act, 1968 for

W.P.(C) 3872/2022 Page 9 of 32

‘Neglects to obey any general, local and other order’. After conducting

hearing, the Unit Commandant ordered for preparation of RoE against the

petitioner on the aforementioned two charges vide Order No. Estt/174

Bn/BSF/ROE/21/7786-90 dated 29.04.2021. The RoE was conducted

strictly as per the provisions of Rule 48 of the BSF Rules, wherein the

petitioner was afforded all the opportunities for his defence.

27.Mr. Verma, as a preliminary objection, submitted that this court lacks

the territorial jurisdiction to entertain this writ petition, as according to him,

the offence under the BSF Act, 1968 and the dismissal from service by the

sentence of a SSFC, was held at Bn HQ 174 Bn BSF, Maheshpur, Raiganj,

West Bengal and office of the Appellate Authority is also situated in the

State of West Bengal i.e. outside territorial jurisdiction of this Court. He

seeks the dismissal of the petition on this ground only.

28.He submitted that the petitioner has wrongly impleaded the Secretary,

Ministry of Home Affairs/Union of India as respondent No.1, even though,

he is neither the Disciplinary/Appellate Authority nor is he concerned with

day to day working of BSF.

29.Mr. Verma submitted that the impugned orders would reveal that

respondent No.1 in the said matter has no role to play, especially in the

present context, in the matters relating to service conditions of the BSF

employees/personnels. He also submitted that the petitioner does not

disclose any procedural irregularity during conduct of the trial of the

petitioner in the SSFC, necessitating judicial review by this Court. In

support of his submission, he has relied on the judgment of the Supreme

W.P.(C) 3872/2022 Page 10 of 32

Court in the case ofUnion of India & Others v. Major A. Hussain (IC-

14827) (MANU/SC/0874/ 1998), wherein, the Court held that, though Court

Martial proceedings are subject to judicial review by the High Court under

Article 226 of the Constitution but the Court Martial is not subject to the

superintendence of the High Court under Article 227 of the Constitution of

India.

30.Mr. Verma submitted that the question of maintainability of petition

under Article 226 of Constitution of India was also decided by the Supreme

Court inCoal India Ltd. & Anr v. Mukul Kumar Choudhary & Ors.,on

24.08.2009 inCivil Appeal Nos. 5762-5763 of 2009. Further, this Court in

WP (C) No. 5878/2011inEx-Constable/GD Rana Pratap Singh v. Union

of India & Ors.,decided on 13.09.2011, has held that:-“while examining

the correctness of finding and sentence of the Court Martial/Security Force

Courts, in exercise of its power under Article 226 of the Constitution of

India, the jurisdiction of the High Court is limited to finding out only

whether there exists an error of jurisdiction or is it a case of total lack of

evidence. It is not open to the High Court to re-evaluate the evidence on

record or whether the evidence on record is sufficient to sustain the finding

of the Court Martial/Security Force Court or to substitute its opinion for

that of the Court Martial/Security Force Court.”

31.He submitted that the RoE against the petitioner was conducted

strictly as per the provisions of Rule 48 of the BSF Rules, wherein the

petitioner was afforded all the opportunities for his defence and nowhere

was he prejudiced in his defence. After completion of the RoE and having

W.P.(C) 3872/2022 Page 11 of 32

gone through the same, the Commandant, 174 Bn BSF, exercised his

discretion under Rule 51 of the BSF Rules, and decided to dispose of the

disciplinary case against the petitioner by holding a SSFC.

32.He submitted that, before conducting the SSFC trialvide174 Bn BSF

letter No. Estt/174 Bn/SSFC-MKY/2021/10624 dated 18.06.2021, all the

requisite documents i.e. copy of RoE proceedings alongwith its exhibits,

charge sheet etc., were provided to the petitioner in advance, in terms of

Rule 63(4) read with Rule 63(6) of the BSF Rules, to prepare his defence

and the same was duly explained to the petitioner-in-person as provided

under Rule 63(5) of the BSF Rules, 1969 in the chamber of the

Commandant, on 18.06.2021.

33.He submitted that, it is in terms of Rule 157 of the BSF Rules, 1969,

the petitioner was intimated to engage a counsel at his own expense, if he

desires. The petitioner was also asked to nominate name any of officer to be

detailed as his ‘Friend of Accused’ during the trial and at his request Mr.

Panna, DC of 174 Bn BSF was appointed as his ‘Friend of Accused’. The

petitioner was also asked to give name of his defence witnesses.

34.He submitted that the SSFC was constituted in terms of Section 70 of

the BSF Act on 21.06.2021 by the Commandant, 174 Bn BSF on two

charges. On being arraigned, the petitioner himself unequivocally pleaded

‘Guilty’ to both the charges against him. Accordingly, the SSFC as per the

provisions of Rule 142(2) of the BSF Rules, obtained signature of the

petitioner and ‘Friend of the Accused’ thereon.

W.P.(C) 3872/2022 Page 12 of 32

35.He submitted that the SSFC after finding the petitioner ‘Guilty’ of

both the charges against him and by taking into consideration the previous

conviction, character, age, length of service etc. and he had earned 11

rewards with 10 punishments to his credit since his enrolment in BSF, the

SSFC assessed the petitioner’s general character as ‘bad’ and thereafter,

sentenced him to be dismissed from service. He also submitted that the

SSFC trial of the petitioner has been conducted strictly as per the provisions

of BSF Act and Rules, wherein he was afforded all the opportunity to defend

himself and neither any of the rights of the petitioner have been infringed

nor he was prejudiced in his defence in anyway.

36.Mr. Verma submitted that the petitioner thereafter submitted statutory

appeal dated 17.08.2021 to the Inspector General, BSF, North Bengal Ftr

against the punishment awarded to him. After consideration of all the facts

and circumstances of the case, the appeal was rejected by the Competent

Authority being devoid of merit and the outcome was conveyed to the

petitioner vide Order dated 26.12.2021.

37.He submitted that the contention of the petitioner that 01 round got

fired accidentally during checking of the Rifle is far from the truth and

further his calling intentional firing as accidental fire is also absolutely

wrong as it is not possible to fire a round from INSAS Rifle without loading

the cartridge into the chamber of the Rifle and adjusting the safety catch to

firing position. He also submitted that other than the trial by SSFC, the

petitioner was awarded the following punishments:-

“i. He was tried summarily on 08.07.2011 for committing an

W.P.(C) 3872/2022 Page 13 of 32

offence under Section 19(b) of the BSF Act, 1968 for "Without

sufficient cause overstaying leave granted to him" in that he,

having been granted 10 days Earned Leave from 26.01.2011 to

04.02.2011, failed without sufficient cause to re-join at Bn HQ

on the expiry of said leave and rejoined voluntarily on

09.04.2011 (AN) (total period of absence- 64 days) and

awarded the punishment of '14 day's pay fine', to be deducted

from his salary.

ii. He was tried summarily on 13.10.2011 for committing an

offence under Section 19(b) of the BSF Act, 1968 for "Without

sufficient cause overstaying leave granted to him" in that he,

having been granted 10 days Earned Leave w.e.f. 25.07.2021 to

03.08.2011, failed without sufficient cause to rejoin at Bn HQ

on the expiry of said leave and rejoined at Bn HQ on

01.09.2011 (total period of absence- 28 days) and awarded the

punishment of '07 day's pay fine' to be deducted from his

salary.

iii. He was tried summarily on 09.01.2016 for committing an

offence under Section 19(b) of the BSF Act, 1968 for "Without

sufficient cause overstaying leave granted to him" in that he,

having been granted 15 days Paternity Leave w.e.f. 06.11.2015

to 20.11.2015 failed without sufficient cause to rejoin at Bn HQ

on the expiry of said leave but rejoined on 3 0.12.20 15 (FN)

(total period of absence- 39 days) and awarded the punishment

of '07 days pay fine', to be deducted from his salary.

iv. He was tried summarily on 19.04.2018 for committing

offences under Section 40 of the BSF Act, 1968 for "Violation

of good order and discipline of the Force" in that he, on

14.04.2018 at about 2020 hrs left BOP Saitanbari, 'D' Coy of

174 Bn BSF without intimation of Post Commander, which is

violation of SOP & under Section 26 of the BSF Act, 1968 for

"Intoxication" in that he, on 14.04.2018 at about 2020 hrs

found in the state of intoxication at BOP Saitanbari, 'D' Coy of

174 Bn BSF and awarded the punishment of '14 days ngorous

imprisonment (RI) in Force custody & 14 day's pay fine', to be

W.P.(C) 3872/2022 Page 14 of 32

deducted from his salary.

v. He was tried summarily on 04.05.2019 for committing an

offence under Section 19(b) of the BSF Act, 1968 for "Without

sufficient cause overstaying leave granted to him" in that he,

having been granted 45 days Earned Leave w.e.f 13.022019 to

29.03.2019 and further extended 15 days Earned Leave w.e.[

30.03.2019 to 13.04.2019(AN) but failed to rejoin duty on

expiry of said leave without sufficient cause and voluntary

joined duty on 27.042019 (total period of absence- 14 days)

and awarded the punishment of '10 days rigorous imprisonment

in Force custody'.

vi. He was tried summarily on 06.12.2019 for committing an

offence under Section 22( e) of the BSF Act, 1968 for "Neglect

to obey any general, local and other order" in that he, on 02.

12.2019 at about 1330 hrs was found in the state of intoxication

at Bn HQ and awarded the punishment of ' 14 days rigorous

imprisonment in Force custody and 14 day's pay fine', to be

deducted from his salary.

vii. He was tried summarily on 17.01.2020 for committing an

offence under Section 19(a) of the BSF Act, 1968 for

"Absenting himself without leave" in that he on 23.08.2019 at

about 1630 hrs, absented himself without leave from Bn HQ,

Alamganj, Dhubri (Assam) and voluntary reported at Bn HQ

Maheshpur, Raiganj (WB) on 09.11.2019 (FN) {total absent

without leave (AWL) period- 78 days} and awarded the

punishment of '28 days rigorous imprisonment in Force

custody'.

viii. He was tried summarily on 12.08.2020 for committing

offences under Section 19( d) of the BSF Act, 1968 for "Without

sufficient cause, failing to appear, at the time fixed at the place

of appointed for exercise or duty" in that he, on 31.07.2020 at

about 2400 hrs, failed to attend 2nd shift duty w.e.f. 010001 to

010600 hrs in the AOR of BOP Domutha, 'D' Coy, 174 Bn BSF

& under Section 22(e) of the BSF Act, 1968 for "Neglect to

obey any General, local and other order" in that he, on

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01.08.2020 at about 0900 hrs was found in the state of

intoxication in BOP Domutha, during surprise checking by SI

Ramdayal B. Satve and awarded the punishment of '28 days

rigorous imprisonment in Force custody and 14 day's pay fine',

to be deducted from his salary.

ix. He was tried summarily on 03 .11.2020 for committing

offences under Section 19( d) of the BSF Act, 1968 for "Without

sufficient cause, failing to appear, at the time fixed at the place

of appointed for exercise or duty" in that he, on 09.10.2020 at

about 2330 hrs, failed to attend ACP duty w.e.f. 2400 hrs to

0600 hrs and evening OP duty w.e.f. 101200 hrs to 101800 hrs

in the AOR of BOP Elendry, 'D' Coy, 174 Bn BSF & under

Section 22(e) of the BSF Act, 1968 for "Neglects to obey any

general, local and other order" in that he, on 10.10.2020 at

about 1600 hrs, proceeded to local market without any

permission of his superior officer and was found in the state of

intoxication in BOP Elendry and awarded the punishment of

'14 days rigorous imprisonment in Force custody and 14 days

pay fine', to be deducted from his salary.”

38.Mr. Verma has also submitted that, besides the aforementioned

punishment, there were times when the respondents have taken a lenient

view and regularised his absence period, as under:-

“i. 26 days OSL period w.e.f. 13.07.2010 to 07.08.2010 was

regularized by granting 26 days Earned Leave in continuation

to earlier sanctioned 15 days Earned Leave.

ii. 15 days Earned Leave w.e.f. 30.03.2015 to 13.04.2015 was

extended in continuation to earlier sanctioned 45 days Earned

Leave.

iii. 15 days Earned Leave w.e.f. 18.04.2013 to 02.05.2013 was

extended in continuation to earlier sanction 45 days Earned

Leave.

iv. 04 days OSL period w.e.f. 08.02.2015 to 11.02.2015 was

regularized by granting 05 days Earned Leave in continuation

to earlier sanctioned 30 days Earned Leave.

W.P.(C) 3872/2022 Page 16 of 32

v. 90 days AWL period w.e.f. 05.09.2016 to 03.12.2016 was

regularized by granting 90 days Extra Ordinary Leave (EOL).

vi. 15 days Earned Leave w.e.f. 30.03.2019 to 13.04.2019 was

extended in continuation to earlier sanctioned 45 days Earned

Leave.”

He seeks the dismissal of the petition.

ANALYSIS AND CONCLUSION

39.Having heard the learned counsel for the parties, the short issue which

arises for consideration is whether the plea of guilty of the petitioner is

sufficient /valid to dismiss him from service.

40.The law on this aspect has been crystallised wherein action against a

personnel who alleged to have pleaded guilty is sought to be taken, then the

same should be in conformity with the mandate of Rule 142(2) of the BSF

Rules. If the action is not in conformity then the same is in contravention to

the said rule.

41.Mr. Inayati has relied on the judgment of the Supreme Court inUnion

of India & Ors. v. Jogeshwar Swain, Civil Appeal Nos. 8629-8630/2014,

on the issue of applicability of Rule 142(2) of the BSF Rules, which is

followed while conducting the SSFC proceedings; which accordingly to him

has been violated. In this judgment, the Supreme court while hearing appeal

against the judgment/order passed by this Court inW.P. (C) 17430/2006,

wherein this Court has set aside the dismissal order passed against the

respondent therein directed his reinstatement. The facts of the case were the

respondent was a Constable (General Duty) in the BSF. The case against

him was that while he was posted as security aide to a lady doctor on

W.P.(C) 3872/2022 Page 17 of 32

17.06.2005, at about 07:45 PM, he clicked pictures of that lady doctor while

she was taking her bath. The allegations against him were 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 (CMO), the BSF Authorities

investigated the matter and put the original petitioner under open arrest.

42.Suffice to state that on the completion of record of evidence, the

Commandant remanded the original petitioner to a trial by the SSFC. The

SSFC held its proceedings on 23.07.2005, wherein, the original petitioner is

stated to have pleaded guilty. Based on that, the SSFC dismissed the original

petitioner from service.

43.The challenge to the dismissal before this Court was primarily on two

grounds; a) there were procedural infirmities in conducting the proceedings

and b) the evidence recorded did not inculpate him.

44.With regard to the first ground, it was pointed out that Rule 60 of BSF

Rules, 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 SSFC was not only convened but also presided over by

the Commandant of the original petitioner which vitiated the proceedings of

the SSFC. The second ground was that the minutes of the proceedings

recording acceptance of guilt by the original petitioner before the SSFC was

not signed by the original petitioner. The issue before the Supreme Court in

W.P.(C) 3872/2022 Page 18 of 32

the case ofJogeshwar Swain(supra), which is relevant for deciding the

present petition, is primarily from paragraph nos. 33 to 38, which we

reproduced as under:-

“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

W.P.(C) 3872/2022 Page 19 of 32

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, 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 subrule

(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

W.P.(C) 3872/2022 Page 20 of 32

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 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

W.P.(C) 3872/2022 Page 21 of 32

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 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

W.P.(C) 3872/2022 Page 22 of 32

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 subrule (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 subrule (2) of Rule 142 of the BSF Rules,

1969.”

45.Before, we deal with this issue, it is necessary to reproduce the

contents of proceedings wherein the petitioner has allegedly accepted the

plea of ‘guilty’ to all the charges as under:-

The charge sheet is read (translated) and explained

to the accused, marked-annexure-B2, signed by the

Court and attached to the proceedings.

Arraignment

W.P.(C) 3872/2022 Page 23 of 32

Question to the accused

Q.2 How say you no. 080027744 Rank constable

Name Murari Kumar Singh of 174 Bn BSF,

are you guilty or not guilty of the first charge

which you have heard/read?

Ans.2 Answer by the accused.

“Guilty”

Q.3 How say you No. 080027744 Rank CT(GD)

Name Murari Kumar Singh of 174 Bn BSF,

are you guilty or not guilty of the second

charge, which you have heard/read?

Ans.3 “Guilty”

The accused having pleaded guilty to the

charges, the court explains to the accused the

meaning of charges to which he has pleaded

guilty and ascertains that the accused

understands the nature of the charges to

which he has pladed guilty. The court also

informs the accused in the language he

understands, the general effect of that plea

and the difference in procedure which will be

followed consequent to the said plead. The

Court having satisfied itself that the accused

understands the charges and the effect of his

plea of guilty and satisfied form the

record/abstract of evidence or otherwise that

there is no need for the accused to withdraw

his plea of guilty, accepts his plea and records

the same.

The provisions of rule 142(2) are complied

with.”

“PROCEEDINGS ON A PLEA OF GUILTY

The Record of Evidence is read (translated),

explained, marked "K", signed by the Court and

attached to the Proceedings.

The Accused No. 080027744 Rank, CT (GD) Name

Murari Kumar Singh of 174 Bn BSF is found Guilty of

W.P.(C) 3872/2022 Page 24 of 32

the Charges

Charge-1 :-Guilty

Charge-2 :-Guilty

Question to the accused.

Q-4. Do you wish to make any statement in reference

to the charge or in mitigation of Punishment?

Ans. Yes, I wish to make a statement,

I will not commit mistake again. I have put on

approximate 13 Years of Service and I have small

children and wife who are all depended on me.

My mother who has expired 02 years back and I

have taken loan of Rs-500000/-for her treatment

and still I am paying the loan amount to the bank.

I may be punished less severely and I should be

posted to any ANO Bn so that I can repay my

loan.

Q-5. Do you wish to call any witness as to character?

Ans. No, I do not wish to call any witness.”

46.The aforesaid judgment was followed by us in the case ofAmarjeet

Singh v. Union of India & Anr., 2024:DHC:3189-DB, whereby the

following the dicta law laid down by the Supreme Court, this Court has set

aside the dismissal of Amarjeet Singh by stating in paragraph no. 47

onwards as under:-

“47. Perusal of the same would reveal that the

petitioner has pleaded guilty to all the charges with an

intent that he may be given one more opportunity to

continue in the respondents‟ force and it was also

stated by the petitioner that if the mistake he has done

be pardoned, he will not repeat it again as he has

family to support being the only earning member of his

family.

48. Therefore, it is clear to us, that the SSFC has not

informed him about the consequences of pleading

W.P.(C) 3872/2022 Page 25 of 32

guilty. In fact, it appears that he was under the bona

fide impression that if he pleads guilty, he may be able

to secure his job. If that be so, the respondents have

only for the sake of formality adhered to the provision

of Rule 142 (2) of the BSF Rules and as such,

dismissed the petitioner from the service, simply on the

basis of the so-called ‘guilty plea’ in respect of all the

three charges. Hence, the proceedings being not in

accordance with Rule 142 (2) of the BSF Rules and as

well as the law laid down by the Supreme Court in

Jogeshwar Swain (supra), the same is not sustainable

in the eyes of law.

49. This we also say, for the reason that the DIG

himself while reviewing the SSFC trial proceedings

under Rules 160 and 161 of the BSF Rules, has clearly

held that there is non-compliance of mandatory

provisions of Rule 142 (2) of the BSF Rules in respect

of charge No.1. It is not understandable to us that

when the plea of guilty was with respect to all the three

charges, how the findings of the SSFC in respect of the

same plea of guilty against the First Charge only is not

in conformity with Rule 142 (2) of the BSF Rules. It is

to be stated here that if the plea of guilty in respect of

the First Charge is in violation of Rule 142 (2) of the

BSF Rules, the same conclusion must also hold good

with regard to the Second and Third Charges.

50. Though, it can be stated that with regard to the

First Charge, there was no cogent evidence to hold the

petitioner guilty, but that would not meet the

requirement of compliance of the procedure as

stipulated for pleading guilty under Rule 142 (2) of the

BSF Rules. The fact that the petitioner, despite there

being no evidence, has pleaded guilty qua the First

Charge, makes it clear that the petitioner has pleaded

guilty with regard to the said Charge, though there

was no evidence to prove his guilt only with an intent

W.P.(C) 3872/2022 Page 26 of 32

that he may be able to secure his job. Surely, the intent

being so and the respondents having not explained the

consequences/ effect of pleading guilty, surely the

mandate of Rule 142 (2) of the BSF Rules, has been

violated. The necessary consequence is that the SSFC

proceedings held against the petitioner which resulted

in his dismissal only on the ground of him pleading

guilty shall be unsustainable and the dismissal of the

petitioner stands vitiated on this ground only.

51. Though other grounds have been urged by Mr.

Inayati to challenge the dismissal of the petitioner from

the service of the respondents’ Force, we do not see

any reason to advert to those pleas as we have set

aside the impugned action of the respondents on the

ground that the mandate of Rule 142 (2) of the BSF

Rules has not been followed while dismissing the

petitioner from the service.

52. Accordingly, the impugned dismissal order dated

December 30, 2021 and the order of the respondents

dated September 27, 2022 dismissing the statutory

appeal are set aside. The petitioner shall be reinstated

in the service of the respondents‟ Force with all the

consequential benefits including back wages to be paid

with interest @ 6% per annum.

53. The writ petition is disposed of in above terms. No

costs.”

47.From the reading of the judgment of the Supreme Court, it is noted

that, a guilty plea needs to be recorded in a given SSFC trial proceedings,

(In terms of the mandate of Rule 142(2) of the BSF Rules) in the following

manner:-

(i) The SSFC is not only required to ascertain whether the

accused understands the nature and meaning of the charge

W.P.(C) 3872/2022 Page 27 of 32

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;

(ii) 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;

(iii) Before acting on the plea of guilty, the compliance of

the procedural safeguards need to be followed, inasmuch

as, it needs to be ensured 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;

(iv) It is for such a reason that Rule 142 (2) 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;

(v) Since, the procedure laid down in Rule 142 (2), serves

an important purpose and is for the benefit of an Accused,

its strict adherence is warranted before accepting a plea of

guilty.

48.Having perused the contents of the documents and as reproduced by

us in the above paragraphs, wherein the guilty plea of the petitioner has been

recorded, it can be seen that the following was not put forth to the petitioner

W.P.(C) 3872/2022 Page 28 of 32

insofar as compliance of Rule 142(2) of the BSF Rules is concerned:-

(i) The court has explained to the accused/petitioner the

meaning of charges to which he has pleaded guilty and

ascertained that the accused understood the nature of the

charges to which he has pleaded guilty;

(ii) The court has also informed the accused/petitioner in

the language he understands, the general effect of the plea

and the difference in procedure which will be followed

consequent to the said plea;

(iii) The Court having satisfied itself that the accused

understands the charges and the effect of his plea of guilty

and satisfied from the record/abstract of evidence or

otherwise that there is no need for the accused to withdraw

his plea of guilty, accepts his plea and records the same.”

49.Inasmuch as, there is nothing in the proceedings to show that the

SSFC had informed the accused/petitioner about the nature and meaning of

the charge which he may have to face, as well as, about the broad

consequences that he may have to suffer once he pleads guilty. In other

words, the petitioner was not informed that, in the case of him pleading

guilty, the consequence could be of his dismissal from service.

50.It is clear from perusal of paragraph 35 of the judgment of the

Supreme Court inJogeshwar Swain (Supra)that strict compliance of Rule

142 (2) of the BSF Rules becomes important as the same ensures that

confessions do not become an easy way out for deciding cases where

marshalling of evidence to prove the charge becomes difficult. In fact, the

case of the petitioner and also recorded by the respondents in answer to the

question no.4 is that, the petitioner had pleaded guilty to all charges with an

W.P.(C) 3872/2022 Page 29 of 32

intent that, he may be punished less severely and be posted to any battalion,

so that he can repay his loan and then education of his children.

51.Therefore, it is clear to this Court that the SSFC has not informed him

about the consequences of him pleading guilty. In fact, it appears that the

petitioner was under thebona fideimpression that, if he pleads guilty, he

may be able to secure his job. If that be so, the respondents have only for the

sake of formality adhered to the provisions of Rule 142(2) of the BSF Rules

and as such dismissed the petitioner from this service, simply on the basis of

so-called guilty plea in respect of these charges. The relevant part of the

dismissal order as under:-

“///ORDER///

No. 080027744 Constable Murari Kumar Singh ‘D’ Coy

of this unit has been tried by Summary security force Court on

21

st

June’ 2021 at 1800 hrs by the under signed for committing

the following offences:-

BSF ACT-1968.

SECTION-40

“AN ACT PREJUDICIAL TO

GOOD ORDER AND DISCIPLINE

TO THE FORCE”

in that he,

On 29.04.2021, at about 0450 hrs,

no. 080027744 CT Murari Kumar

Singh while performing the duty of

Unit Mag Guard at Bn hq, 174 Bn

BSF, Maheshpur (WB) and fired 01

Round of 5.56 mm INSAS without any

provocation from his personal weapon

Butt No. 335 Body No. 16844395.

W.P.(C) 3872/2022 Page 30 of 32

BSF ACT-1968.

SECTION-22 (e)

“NEGLECTS TO OBEY ANY

GENERAL, LOCAL AND OTHER

ORDER”.

in that he,

On 29.04.2021, at about 0450 hrs,

when checked by ASI/ Adjt Ashok

Kumar Gularia, found him in the state

of intoxication while on Unit Mag

guard duty at Bn HQ. 174 Bn BSF in

contravention of Battalion Oder No.

Steno/ Order/ 174 Bn/ 2019/ 18159-68

dated 03.10.2019

2. The court has found the accused‘Guilty’of above

charges and awarded the sentenced“TO BE DISMISSED

FROM SERVICE”. The finding and sentence of the court was

promulgated to the accused at Bn HQ. 174 Bn bsf, Maheshpur,

Raiganj (WB) on 21

st

June’ 2021 by the undersigned.

3. Outstanding dues & Govt. Dues if any be recovered from

the dues payable to the individual. He has been struck off

strength from this Battalion21.06.2021 (AN).”

52.Even on the statutory appeal filed by the petitioner, the Competent

Authority has held the petitioner has given a statement that, he will not

commit the mistake again and he may be punished less severely. The

relevant paragraphs of the order dated 26.12.2021 is reproduced as under:

“6. Whereas, the aforesaid petition/appeal dated 17.08.2021 of

the petitioner has been considered carefully by the competent

authority i.e. Inspector General BSF, North Bengal Ftr and it

has been observed that the SSFC trial of the petitioner was

conducted strictly in accordance with rules and procedure as

prescribed under the BSF Act & Rules, wherein the petitioner

W.P.(C) 3872/2022 Page 31 of 32

was given sufficient opportunity to defend himself at every

stage of the trial. More so, there is sufficient and cogent

evidence available on record in the ROE proceedings to sustain

his conviction on the aforementioned charges against him.The

grounds raised by the petitioner are also examined thoroughly

and the same are found to be false and misleading. During

the trial, the petitioner himself pleaded 'Guilty' to both the

charges against him.The Court complied with the provisions

of BSF Rule 142(2) and thereafter, following the due

procedure, the Court found the petitioner 'Guilty' of both the

charges against him.On being given an opportunity to make a

statement in reference to the charges and/or mitigation of the

punishment, and to call witness as to character, the petitioner

did not call any witness as to character, but made short

statement, wherein he has stated that he will not commit

mistake again.He had put in approximate 13 years of service

in BSF and he has small children and wife who all are

depended on him. His mother had expired 02 years back and

he had taken loan of Rupees 5 lakh for treatment and still he

is paying the loan amount to the bank. He may be punished

less severely and he should be posted to any ANO Bn so that

he can repay his loan".The petitioner was not tried for the

same offences twice as alleged. In fact, on 17.05.2021, the

petitioner was tried summarily under Section 53 of the BSF Act,

1968 for committing another offence under Section 19(b) of the

BSF Act, 1968 for "Overstaying from leave without sufficient

cause for 86 days" and on being found guilty of the said

charge, he was awarded the punishment "to suffer 28 days RI in

force custody". As far as service profile of the petitioner is

concerned, as on 21.06.2021 ie. the date of his conviction by

the SSFC, the petitioner was 35 years 05 months and 01 day of

age and had rendered 13 years, 02 months and 20 days of

service in BSF. His past service record is also not good as

during his service career in BSF, he had been punished on 10

earlier occasions for committing various offences under the

BSF Act, 1968, but he failed to improve himself.

7. In view of foregoing and after careful consideration of all the

W.P.(C) 3872/2022 Page 32 of 32

facts and circumstances of the case, the Inspector General BSF,

North Bengal Ftr, being the competent authority, rejected the

petition/appeal dated 17.08.2021 submitted by the petitioner for

reinstatement in service being devoid of merit.”

(Emphasis supplied)

53.Hence, the proceedings being not in accordance with Rule 142(2) of

the BSF Rules as well as the law laid down by the Supreme Court in the

case ofJogeshwar Swain (Supra), the same is not sustainable in the eyes of

law. Accordingly, the impugned order of dismissal dated 21.06.2021 and the

order of Statutory Appeal dated 26.12.2021 are set aside. The petitioner

shall be reinstated in the service of the respondents with all consequential

benefits including back wages to be paid with interest at 6% per annum.

54.The petition is disposed of with the above directions.

V. KAMESWAR RAO, J

MANMEET PRITAM SINGH ARORA, J

MARCH 10, 2026

rk