B. S. HARI COMMANDANT versus UNION OF INDIA & ORS.

[2023] 3 S.C.R. 431

B. S. HARI COMMANDANT

UNION OF INDIA & ORS.

(Criminal Appeal No(s). 1890 of 2014)

APRIL 13, 2023

[KRISHNA MURARI ANDAHSANUDDIN AMANULLAH, JJ.]

Border Security Force Act, 1968 – Appellant-Commandant inBorder Security Force was sentenced to 10 years’ rigorousimprisonment; imposed fine of Rs. 1,00,000/- and dismissed fromservice for allegedly permitting smuggling of contraband goodsfrom India to Pakistan from Border fencing gate under his control– Held: Though in the armed forces, including the paramilitaryforces, utmost discipline, unity of command are the sine qua non, thedoctrine of proportionality still holds the field – In the present case,there is no direct evidence against the appellant – Except thestatement of the Subedar (who was the actual in-charge of the areawhere the activity allegedly occurred) roping in the appellant, thereis no material against him – Statement of single person alone,ought not to have resulted in his conviction without other material(s)incriminating him or pointing to his guilt – Thus, in the absence ofdirect and cogent evidence against the appellant, even if the GeneralSecurity Force Court (GSFC) was convinced of his guilt, thepunishment handed out was too harsh and disproportionate –Appellant was first-time delinquent and not habitual offender –Moreover, the appellant has served the country for over 31½ yearswithout blame or blemish and received various awards includingmedal from Hon’ble the President of India – His track record isotherwise unquestionable – Impugned judgment of High Court setaside – Conviction and sentence awarded by the GSFC set aside –Appellant entitled to full retiral benefits from the date ofsuperannuation till date – Narcotic Drugs and PsychotropicSubstances Act, 1985 – Doctrine of Proportionality – Armed Forces.

Constitution of India – Article 226:

Criminal writ petitions – Power of High Courts to sift throughevidence – Discussed.

DEF

Limit on exercise of power – Held: Art.226 is succour toremedy injustice and any limit on exercise of such power is onlyself-imposed.

Judgments/Orders – Paragraph-wise numbering in – Held: Itis desirable that all Courts and Tribunals, as matter of practice,Bnumber paragraphs in all Orders and Judgments in seriatim –Hon’ble Chief Justices of High Courts to consider adoption of auniform format for Judgments and Orders, including paragraphingand accordingly direct the Courts and Tribunals subordinate to theirHigh Courts – Directions by Supreme Court.

CAllowing the appeal, the Court

HELD: 1.1 In the armed forces of the Union, including theparamilitary forces, utmost discipline, unity of command et al arethe sine qua non. That said, the doctrine of proportionality stillholds the field. In the absence of direct and cogent evidenceDagainst the appellant, even if the GSFC was convinced of theappellant’s guilt, the punishment handed out was too harsh, payingheed that the appellant would, even then, be first-timedelinquent, and not habitual offender. Arguendo, that there besome semblance of truth in the allegations, the punishment metedout was disproportionate. [Paras 36, 37][442-H; 443-A-B]E1.2 The appellant has served the country for over 31 ½years without blame or blemish, and has received various awards,inter alia, including medal from Hon’ble the President of India.The appellant’s track record is otherwise unquestionable. Onthe alleged criminality, the undisputed and uncontroverted factFremains that the appellant was commanding the Force operatingover large area, including from where the Jerrycans allegedlymoved from the Indian side to the Pakistani side. However, it isequally not in dispute that the actual manning of the area is bythe subordinate personnel of the Force. In the present instance,Gthe subordinate personnel have been adjudged guilty, indicatingtheir active involvement. Being the persons on the spot, it wastheir primary responsibility to ensure that no crimes/offences/questionable incidents took place on their watch. Moreover,there is no direct evidence against the appellant. [Paras 38,41][443-C, E-G]H

1.3 Save and except Subedar DS’s statement, roping in theappellant, there is no material against him. Hence, ceteris paribus,without other material(s) incriminating the appellant or pointingto his guilt, the statement of single person alone, ought not tohave, in this instance, resulted in his conviction. At the proximatetime, the search of the appellant’s house, did not result in recoveryof any incriminating documents/articles. Such non-recovery wouldobviously enure to the appellant’s benefit. [Paras 45, 46][445-C-D]

1.4 Article 226 of the Constitution is succour to remedyinjustice, and any limit on exercise of such power, is only self-imposed. The High Courts, under the Constitutional scheme,are endowed with the ability to issue prerogative writs to safeguardrights of citizens. For exactly this reason, this Court has neverlaid down any strait-jacket principles that can be said to have“cribbed, cabined and confined” the extraordinary powers vestedunder Articles 226 or 227 of the Constitution. This was fit casefor the High Court to have examined the matter threadbare, moreso, when it did not involve navigating factual minefield. TheImpugned Judgement is quashed and set aside. The convictionand sentence awarded by the GSFC is also set aside. The appellantis held entitled to full retiral benefits from the date of hissuperannuation till date. [Paras 50, 51][446-E-H; 447-A]

P Royappa v State of Tamil Nadu AIR 1974 SC 555 :

[1974] 2 SCR 348 – followed.

Mohd. Jamiludin Nasir v State of West Bengal (2014) 7SCC 443 : [2014] 14 SCR 1; Nawab Shaqafath AliKhan v Nawab Imdad Jah Bahadur (2009) 5 SCC 162: [2009] 4 SCR 589; Surya Dev Rai v Ram ChanderRai (2003) 6 SCC 675 : [2003] 2 Suppl. SCR 290; VVenkateswaran v Ramchand Sobhraj Wadhwani (1962)1 SCR 573; U P State Sugar Corporation Ltd. v KamalSwaroop Tandon (2008) 2 SCC 41 : [2008] 1 SCR 887;Shakuntala Shukla v State of Uttar Pradesh 2021 SCCOnLine SC 672; State Bank of India v Ajay KumarSood 2022 SCC OnLine SC 1067 – relied on.

AState of Jharkhand v Jitendra Kumar Srivastava (2013)12 SCC 210 : [2013] 8 SCR 177; Veena Pandey vUnion of India (2022) 2 SCC 379; Council of CivilService Unions v Minister for the Civil Service [1984]3 WLR 1174 (HL); Bhagat Ram v State of HimachalPradesh (1983) 2 SCC 442; Ranjit Thakur v Union ofBIndia (1987) 4 SCC 611 : [1988] 1 SCR 512; AndhraPradesh Industrial Infrastructure Corporation Limitedv S N Raj Kumar (2018) 6 SCC 410 : [2018] 3 SCR455; S Nakara v Union of India (1983) 1 SCC 305 :[1983] 2 SCR 165; State of West Bengal v Haresh CCBanerjee (2006) 7 SCC 651 : [2006] 5 Suppl. SCR620; Dr Hira Lal v State of Bihar (2020) 4 SCC 346 :[2020] 2 SCR 907; Radhey Shyam v Chhabi Nath(2015) 5 SCC 423 : [2015] 3 SCR 197 – referred to.

Case Law Reference

From the Judgment and Order dated 19.02.2010 of the High CourtHof Punjab & Haryana at Chandigarh in CRWP No. 3 of 1997.

Vivek Singh, Adv. for the Appellant.

Jayant K. Sud, ASG, Mrs. Sonia Mathur, Sr. Adv., Sanjay KumarTyagi, Harish Pandey, Mrs. Swarupama Chaturvedi, S.N. Terdal,Simarjeet Singh Saluja, Ms. Divik Mathur, Ms. Ronika Tater, Ms.Pratiksha Mishra, Ms. Rupakshi Soni, Nikhil Jaiswal, Arvind KumarSharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

AHSANUDDIN AMANULLAH, J.

Heard learned counsel for the parties.

2. The present criminal appeal is directed against the FinalJudgment and Order dated 19.02.2010 (hereinafter referred to as the“Impugned Judgment”) [2010 SCC OnLine P&H 2558] rendered bythe High Court of Punjab and Haryana at Chandigarh dismissing CriminalWrit Petition No. 03 of 1997 (hereinafter referred to as the “High Court”)preferred by the appellant (original writ petitioner). Leave was grantedvide Order dated 29.08.2014.

THE FACTUAL PRISM:

3. The appellant joined the Indian Army on 09.02.1964. He wasabsorbed as an Assistant Commandant in the Border Security Force(hereinafter referred to as the “Force”) on 04.06.1969. Thereafter, hewas promoted to the post of Commandant in the Force as well as grantedselection grade in the rank of Commandant. He was also awarded variousmedals, including the Police Medal in 1994 by Hon’ble the President ofIndia for rendering about 30 years of unblemished service. Later, hewas transferred to Punjab as Commandant of the 1956 Battalion (BN)(BSF) with Headquarters at Mamdot, Punjab.

4. On 05.04.1995, the local police conducted search and fewJerrycans of Acetic Anhydride, controlled substance under Section 9Aof the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as the “NDPS Act”), were stated to be locatedin Pakistani territory and in the fields owned by Indian civilians adjoiningthe border, for which First Information Report No. 92 dated 05.04.1995i.e., on the same day, was lodged in Police Station Ferozepur, Punjab bythe local police naming two persons viz. Lakhwinder Singh and SurjitSingh @ pahalwan as the accused showing them to be smugglers.

5. On 07.04.1995, the appellant was directed to hand over chargeand move to the STC, the Force, Kharkan, where he was placed underarrest. However, search of the appellant’s house did not lead to anyrecovery of any incriminating material(s).

6. On 09.04.1995, one-man Staff Court of Inquiry was orderedBinto the incident headed by one Mr. V.K. Sharma. In the said Inquiry,Inspector Didar Singh, who was in actual and physical command andcontrol of the area in the vicinity of which the alleged Jerrycans wererecovered, is said to have made statement that he was involved in theincident at the behest of the appellant.

C7. On the basis of the Inquiry Report, the appellant was issuedcharge sheet dated 04.07.1995 under Sections 40 & 46 of the BorderSecurity Force Act, 1968 (hereinafter referred to as the “BSF Act”).However, the charges, as laid aforesaid, were dropped.

8. Thereafter, the appellant superannuated on 31.08.1995 afterDrendering service in the Force for 31 years, 6 months and 22 days.

9. On 20.10.1995, fresh charge sheet containing three chargeswas served on the appellant. Two charges were under Section 46 of theBSF Act for Civil offence committed in contravention of Section 25 ofthe NDPS Act and one charge under Section 40 of the BSF Act. TrialEagainst the appellant commenced on 30.10.1995 by convening GeneralSecurity Force Court (hereinafter referred to as the “GSFC”).

10. The appellant, invoking Article 226 of the Constitution of India(hereinafter referred to as the “Constitution”), filed Writ Petition No.16008 of 1995 before the High Court, against the rejection of his applicationFquestioning jurisdiction of the GSFC, which was dismissed on 18.01.1996.

11. Meanwhile, one accused alleged smuggler in FIR No. 92 dated05.04.1995 (described supra), namely Surjit Singh @ Pahalwan, movedthe High Court, by way of Criminal Miscellaneous No. 10562-M of 1996,seeking quashing of the FIR against him. The ground urged was that, onthe date of alleged incident, Surjit Singh @ Pahalwan was lodged in theGCentral Jail, Amritsar and could not have been involved in the crime.The said petition was allowed vide order dated 01.11.1996.

12. On 10.04.1996, the GSFC gave its verdict, finding the appellantnot guilty of the first charge but guilty of the second and third charges. Itsentenced him to 10 years’ Rigorous Imprisonment; imposed fine of Rs.H

1,00,000/-, and; dismissed him from service. This was confirmed by theConfirming Officers.

13. Statutory petition against his conviction and sentence was thenfiled by the appellant on 15.05.1996. As the same was not being decidedby the concerned authority, the appellant moved the High Court videCivil Writ Petition No. 13020 of 1996, which was disposed of by orderdated 28.08.1996, directing the respondent-Authority to dispose of thestatutory petition within period of two months.

14. Pursuant thereto, the respondent-Authority rejected theappellant’s statutory petition on 02.11.1996. In this light, the appellantfiled Criminal Writ Petition No. 3 of 1997 before the High Court forquashing his trial and the impugned order therein, as also seeking directionsto quash all consequential orders and to release the pensionary and otherbenefits to the appellant.

15. On 19.09.1997 [1997 SCC OnLine P&H 1176], the appellantwas granted bail by the High Court and he remained on bail w.e.f.,19.09.1997 till 19.02.2010.

16. In the meantime, the other co-accused viz. Lakhwinder Singhwas discharged by the learned Trial Court in the absence of any evidence.

17. The High Court dismissed Criminal Writ Petition No. 3 of1997 on 19.02.2010, which is the Impugned Judgment.

SUBMISSIONS BY THE APPELLANT:

18. Learned counsel for the appellant submitted that as far asCharge No.1 was concerned, i.e., of knowingly having permittedLakhwinder Singh, on the intervening night of 9/10[th] March, 1995, totake out 30 Jerrycans of 40 litres each of Acetic Anhydride from Indiato Pakistan through border fencing gate No. 205 of BOP Barrake underhis control, the same was not proved against the appellant.

19. However, the learned counsel for the appellant submitted thatCharge No. 2, which was identical though the date(s) were 4/5[th]April,1995, of having knowingly permitted the two smugglers to take out 44Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistanfrom Border fencing gate No. 205 of BOP Barake, under his control hasbeen held to be proved by the GSFC, is clearly unsustainable as oneaccused Surjit Singh @ Pahalwan was given relief by the High Courtby quashing the FIR against him on the ground that he was lodged in

ACentral Jail, Amritsar on the said date(s), and the other co-accusedLakhwinder Singh was also discharged by the trial court itself in theabsence of any evidence. Thus, according to learned counsel, two persons,stated to have taken away the Jerrycans having themselves been let off,the case against the appellant automatically fails. As far as Charge No.3, of knowingly acting prejudicial to good order and discipline of theBForce during his tenure as Commandant at Mamdot between November,1994 and April, 1995 of the 67 Battalion of the Force and having improperlyinfluenced Subedar Didar Singh of his unit to facilitate the allegedsmuggling of contraband goods from India, is clearly not established forthe reason that it was on the statement of the said Didar Singh (whoCwas his subordinate and the actual in-charge of the area where the saidactivity is alleged to have occurred) has, clearly, made statement tosave himself from the obvious and severe consequences, which wouldhave entailed. Learned counsel submitted that this may even have beenat the behest of the superior officers of the appellant, inasmuch as therewas genuine apprehension of the same, for the appellant had stoutlyDrefused to oblige his Controlling Officer, on an earlier occasion. It wascontended that the trial itself was nullity as the BSF Act does notenvisage the GSFC trying offence(s) under the NDPS Act and it alsodid not obtain the requisite sanction from the Central Government forinitiating trial against the appellant as required under and in terms ofESection 59(3) of the NDPS Act. It was further contended that Rule 102of the BSF Rules, 1969 (hereinafter referred to as “the Rules”) providesthat only one sentence shall be awarded in respect of all the offences ofwhich the accused is found guilty. However, in the present case threepunishments were given, which contravenes Rule 102 of the Rules readwith Section 48 of the BSF Act.F

20. It was the submission of learned counsel that the sentence ofdismissal from service is also illegal as the appellant retired on 31.08.1995,even before the issuance of the charge sheet in question and thus therecannot be any sentence of dismissal from service, which is made clearfrom Rule 166 of the Rules, which stipulate that the sentence of dismissalGshall take effect from the date of promulgation of such sentence or fromany subsequent date as may be specified at the time of promulgation,which in the present case is much after the superannuation of the appellantfrom service. Likewise, it was contended that once the first charge sheetdated 04.07.1995 was dropped, apparently for insufficient evidence, theHappellant was required to be discharged under Rule 59(1)(i) of the Rules

and thus, the second charge sheet dated 20.10.1995 is illegal more sosince Chapter VIII of the Rules do not contemplate the issuance of anysecond charge sheet under the BSF Act and the Rules. It was submittedthat the Rules specifically provide for amendment of the charge sheeti.e., addition, omission or alteration in the charge by the GSFC; whereasin the instant case, an entirely new charge sheet had been issued by theAdditional DIG which tantamounted to, in effect, second trial which isprohibited under Section 75 of the BSF Act.

21. On the point of withholding the appellant’s pension, gratuityand other benefits, it was submitted that having already superannuatedon 31.08.1995, there was no authority vested in the Force to withholdthe same and due to such arrogant and arbitrary action, the appellant,now aged about 82 years and having superannuated about almost 28years back, is in very poor financial condition and is unable to sustainhimself, having no means for his daily needs and medical expenses.

22. Learned counsel submitted that neither the BSF Act nor theRules envision withholding pension, gratuity, leave encashment and otherdues/benefits of any retiree, after retirement without there being specificorder under Section 48(1)(k) & 48(1)(l) of the BSF Act, which in thepresent case has admittedly, not been passed. Even otherwise it wascontended that withholding pension is violative of Rule 9 of the CentralCivil Services (Pension) Rules, 1972 (hereinafter referred to as “thePension Rules”) which provide that only Hon’ble the President of Indiacan withhold pension of an employee.

23. In support of such contention, reliance was placed on thedecisions of this Court in State of Jharkhand v Jitendra KumarSrivastava, (2013) 12 SCC 210, the relevant being at Paragraph No. 16holding that person cannot be deprived of his pension without theauthority of law, which is the constitutional mandate enshrined in Article300A of the Constitution of India, and further, in Veena PandeyvUnionof India, (2022) 2 SCC 379, the relevant being at Paragraph No. 10where it was held that pension is the deferred portion of compensationfor rendering long years of service and is hard-earned benefit accruingto an employee and has been held to be in the nature of property. Wenote that the appellant had addressed representations to differentauthorities seeking release of his dues or copy of the order by whichthe same have been withheld, filed alongwith the application seekingearly hearing i.e. Crl. M.P. No. 74756/2021 at Pages 16-17.

A24. It was also submitted that as far as Acetic Anhydride isconcerned, it is neither narcotic drug nor psychotropic substance, butonly controlled substance under Section 9A of the NDPS Act,punishable under Section 25A of the NDPS Act.

25. Summing up, it was submitted by learned counsel for theBappellant that there have also been violations of other statutory provisionsof the BSF Act and the Rules and the principles of natural justice werenot conformed to during trial.

SUBMISSIONS OF THE RESPONDENTS:

26. Per contra, learned senior counsel for the respondentsCsupported the Judgment under challenge. It was submitted that therewas no infirmity in the appellant being tried separately as he was chargedunder the NDPS Act and under Sections 40 & 46 of the BSF Act readwith Section 25 of the NDPS Act.

27. It was urged that Subedar Didar Singh was tried and convictedDby GSFC and sentence of forfeiture of ten years of service for thepurpose of pension and severe reprimand were handed out; Sub. N. K.Satpal was tried by GSFC and inflicted with reduction to the rank ofLance Naik (L/NK), and Constable Keshav Singh was tried by the GSFCand awarded sentence of rigorous imprisonment for 45 days in forceEcustody. It was contended that the appellant cannot derive benefit fromthe discharge of the two purported smugglers as they were chargedwith the offence of placing the contraband substance on the spot fromwhere it was recovered, while the appellant was charged under Section25 of the NDPS Act. It was submitted that the contraband items couldnot have been taken outside the area controlled by the Force, which wasFunder the overall control of the appellant, to the Pakistani side without ithaving passed through the gates which were manned by the personnelof the Force. Further, it was submitted that Surjit Singh @ Pahalwanwas given relief by quashing the FIR concerned, as he was able toestablish his incarceration in jail on the date of the incident.G28. Learned counsel submitted that as per the secret informationreceived by the appellant, the Jerrycans of Acetic Anhydride were placednear the international borders by the two smugglers with the help of theofficials of the Force and even if the said two persons were the leadperpetrators, the role of the appellant and other officers/personnel of theForce, in aiding such movement was clearly established. It was submittedH

that the appellant was in overall command of the area and is, hence,responsible for the incidents narrated hereinbefore.

29. On the question of pension, gratuity and other retiral benefitsbeing withheld, learned counsel for the respondents submitted that theappellant had been paid GPF and CGEIS. Further, it was stated at theBar that he had also been paid provisional pension under Rule 69 of thePension Rules, and only later on, the same was stopped, taking recourseto Rule 24 of the Pension Rules, as dismissal from service entailsforfeiture of past service.

ANALYSIS, REASONING AND CONCLUSION:

30. Having perused the materials on record and surveyed therelevant judicial pronouncements, upon an overall examination, this Courtis unable to uphold the view taken by the learned Single Bench of theHigh Court.

31. Procedural deficiencies in the process and/or trial, canvassedby learned counsel for the appellant, have purposely not been dealt with.Expressing no opinion thereon, we leave those question(s) of law openfor adjudication in more appropriate case, as we are interfering onmerits.

32. In Council of Civil Service Unions v Minister for the CivilService, [1984] 3 WLR 1174 (HL), the House of Lords, speaking throughLord Diplock, stated:

“… Judicial review has I think developed to stage todaywhen, without reiterating any analysis of the steps by whichthe development has come about, one can convenientlyclassify under three heads the grounds on which administrativeaction is subject to control by judicial review.The first groundI would call ‘illegality’, the second ‘irrationality’ and the third‘procedural impropriety’. That is not to say that furtherdevelopment on case by case basis may not in course oftime add further grounds. I have in mind particularly thepossible adoption in the future of the principle of‘proportionality’ which is recognised in the administrative lawof several of our fellow members of the European EconomicCommunity; …”

(emphasis supplied)

A33. In Bhagat Ram v State of Himachal Pradesh, (1983) 2 SCC442, it was opined:

“15. … It is equally true that the penalty imposed must becommensurate with the gravity of the misconduct, and thatany penalty disproportionate to the gravity of the misconductBwould be violative of Article 14 of the Constitution.… ”

(emphasis supplied)

34. In Ranjit Thakur v Union of India, (1987) 4 SCC 611, thisCourt, in the circumstances therein, commented, at paragraph no. 27, that:

“… the punishment is so strikingly disproportionate as to callCfor and justify interference. It cannot be allowed to remainuncorrected in judicial review.”.

35. In Andhra Pradesh Industrial Infrastructure CorporationLimited v S N Raj Kumar, (2018) 6 SCC 410, this Court exposited:

D“20.… In the realm of Administrative Law “proportionality”is principle where the court is concerned with the process,method or manner in which the decision-maker has orderedhis priorities and reached conclusion or arrived at a-decision. The very essence of decisionmaking consists in theattribution of relative importance to the factors andEconsiderations in the case.The doctrine of proportionalitythus steps in focus true nature of exercise — the elaborationof rule of permissible priorities [Union of India v. G.Ganayutham, (1997) 7 SCC 463: 1997 SCC (L&S) 1806].De Smith [Judicial Review of Administrative Action (1995),Fpara 13.085, pp. 601-605; see also, Wade: AdministrativeLaw (2009), pp. 157-158, 306-308.] also states that“proportionality” involves “balancing test” and “necessitytest”. The “balancing test” permits scrutiny of excessiveonerous penalties or infringement of rights or interests and amanifest imbalance of relevant considerations.”G

(emphasis supplied)

36. We are quite conscious that in the armed forces of the Union,including the paramilitary forces, utmost discipline, unity of command etal are the sine qua non. That said, the doctrine of proportionality stillholds the field.H

37. In the absence of direct and cogent evidence against theappellant, even if the GSFC was convinced of the appellant’s guilt, thepunishment handed out was too harsh, paying heed that the appellantwould, even then, be first-time delinquent, and not habitual offender.Arguendo, that there be some semblance of truth in the allegations, thepunishment meted out, in our considered view, was disproportionate.

38. Another factor which has nudged this Court to introspect vis-à-vis proportionality herein, is that the appellant has served the countryfor over 31 ½ years without blame or blemish, and has received variousawards, inter alia, including medal from Hon’ble the President of India.The appellant’s track record is otherwise unquestionable.

39. There is no quarrel with the propositions enunciated in JitendraKumar Srivastava (supra) and Veena Pandey (supra). The need torestate the settled position of law in, inter alia, S Nakara v Union ofIndia, (1983) 1 SCC 305; State of West Bengal v Haresh Banerjee,(2006) 7 SCC 651, and; Dr Hira Lal v State of Bihar, (2020) 4 SCC346, is obviated – this Court has taken the consistent view that personcannot be deprived of pension dehors the authority of law.

40. If things stood only thus, we may have considered remandingthe matter back to the GSFC. But, given the long period of time elapsed,the age of the appellant, and our finding below on the evidentiary aspect,we refrain from adopting that course of action.

41. On the alleged criminality, the undisputed and uncontrovertedfact remains that the appellant was commanding the Force operatingover large area, including from where the Jerrycans allegedly movedfrom the Indian side to the Pakistani side. However, it is equally not indispute that the actual manning of the area is by the subordinate personnelof the Force. In the present instance, the subordinate personnel havebeen adjudged guilty, indicating their active involvement. Being the personson the spot, it was their primary responsibility to ensure that no crimes/offences/questionable incidents took place on their watch. Moreover,there is no direct evidence against the appellant.

42. Illustratively, it would not be out of place to draw an analogyfrom situation where crime occurs under the jurisdiction of theSuperintendent of Police and in the criminal proceedings emanatingtherefrom, some police personnel are held guilty, and thereafter, criminalcase as also departmental proceedings, based on such acts of

Acommissions or omissions, is opened against the said Superintendent ofPolice, on the premise that such incident transpired under his overallwatch and control. This would be an extreme and absurd extension ofthe principle of dereliction of duty and/or active connivance, in the absenceof overwhelming material establishing guilt, or at the very least, negatingthe probability of his innocence.B

43. This Court would hasten to add that it should not be construedthat the appellant, being the Commandant, had no responsibility/duty toprevent such incident, but to stretch it to the extent to label him an activepartner and/or facilitator of such crime is wholly unjustified, having regardto the present factual matrix. Notably, solely on the strength of theCstatement of Subedar Didar Singh – who is said to have confessed to hisinvolvement in the incident but goes on to add that it was at the behest ofand upon the direction of the appellant – the appellant was subjected topunishment.

44. In Mohd. Jamiludin Nasir v State of West Bengal, (2014) 7DSCC 443, examining Sections 10 and 30 of the Evidence Act, 1872, itwas held:

“144. Going by the above provisions, the relevance, efficacyand reliability of the confessional statement of appellant Nasirwhen examined on the touchstone of Sections 10 and 30 ofEthe Evidence Act, it will have to be stated that the confessionof co-accused cannot be treated as substantive evidence toconvict other than the person who made the confession onthe evidentiary value of it. It is, however, well establishedand reiterated in several decisions of this Court that basedFon the consideration of other evidence on record and if suchevidence sufficiently supports the case of the prosecution andif it requires further support, the confession of co-accusedcan be pressed into service and reliance can be placed uponit.In other words if there are sufficient materials to reasonablybelieve that there was concert and connection between theGpersons charged with the commission of an offence based ona conspiracy, it is immaterial even if they were strangers toeach other and were ignorant of the actual role played bythem of such acts which they committed by joint effort. Goingby Section 30 of the Evidence Act, when more than one personHare being tried jointly for the same offence and confession

made by one of such persons is found to affect the maker aswell as the co-accused and it stands sufficiently proved, theCourt can take into consideration such confession as againstother persons and also against the person who made suchconfession from the above proposition, we can make referenceto the decisions of this Court in Natwarlal Sakarlal Mody v.State of Bombay [(1963) 65 Bom LR 660 (SC)] and Govt.(NCT of Delhi) v. Jaspal Singh [(2003) 10 SCC 586 : 2004SCC (Cri) 933].”

(emphasis supplied)

45. As emphasised hereinbefore, save and except Subedar DidarSingh’s statement, roping in the appellant, there is no material againsthim. Hence, ceteris paribus, without other material(s) incriminating theappellant or pointing to his guilt, the statement of single person alone,ought not to have, in this instance, resulted in his conviction.

46. This Court is mindful that at the proximate time, the search ofthe appellant’s house, did not result in recovery of any incriminatingdocuments/articles. Such non-recovery would obviously enure to theappellant’s benefit.

47. While declining to consider the plea raised of insufficiency ofevidence, the learned Single Bench, at page 13 (of 19) of the ImpugnedJudgment, has commented:

“The finding by Security Force Court on the basis ofappreciation of evidence would be beyond the purview of awrit Court as has been consistently held by various Courtsincluding the Hon’ble Supreme Court.”

48. The High Court ought to have been cognizant that, consideringthe seriousness of the issue(s) raised, it was not denuded of the powerto sift through the evidence, even in criminal writ petition. This Courtin Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur, (2009)5 SCC 162, held:

“48. If the High Court had the jurisdiction to entertain eitheran appeal or revision application or writ petition underArticles 226 and 227 of the Constitution of India, in givencase it, subject to fulfilment of other conditions, could evenconvert revision application or writ petition into an appeal

Aor vice versa in exercise of its inherent power. Indisputably,however, for the said purpose, an appropriate case for exerciseof such jurisdiction must be made out.”

(emphasis supplied)

49. In respectful agreement with the above statement of law, weBreiterate that High Courts, under Articles 226 and/or 227, are to exercisetheir discretion “… solely by the dictates of judicial conscienceenriched by judicial experience and practical wisdom of the judge.”,as highlighted in Surya Dev Rai v Ram Chander Rai, (2003) 6 SCC675. This guiding principle still governs the field, and the 3-Judge BenchCin Radhey Shyam v Chhabi Nath, (2015) 5 SCC 423 had only partlyoverruled Surya Dev Rai (supra) in terms below:

“29.1. Judicial orders of the civil court are not amenable towrit jurisdiction under Article 226 of the Constitution.

29.2. Jurisdiction under Article 227 is distinct from jurisdictionDunder Article 226.

29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. RamChander Rai, (2003) 6 SCC 675] is overruled.”

50. Article 226 of the Constitution is succour to remedy injustice,and any limit on exercise of such power, is only self-imposed. GainfulEreference can be made to, amongst others, V Venkateswaran vRamchand Sobhraj Wadhwani, (1962) 1 SCR 573 and U P State SugarCorporation Ltd. v Kamal Swaroop Tandon, (2008) 2 SCC 41. TheHigh Courts, under the Constitutional scheme, are endowed with theability to issue prerogative writs to safeguard rights of citizens. ForFexactly this reason, this Court has never laid down any strait-jacketprinciples that can be said to have “cribbed, cabined and confined”[to borrow the term employed by the Hon. Bhagwati, J. (as he thenwas) in P Royappa v State of Tamil Nadu, AIR 1974 SC 555] theextraordinary powers vested under Articles 226 or 227 of the Constitution.Adjudged on the anvil of Nawab Shaqafath Ali Khan (supra), this wasGa fit case for the High Court to have examined the matter threadbare,more so, when it did not involve navigating factual minefield.

51. For reasons aforenoted, this criminal appeal succeeds andstands allowed. Consequently, (a) the Impugned Judgement is quashedand set aside, and; (b) the conviction and sentence awarded by the GSFCH

dated 10.04.1996 is also set aside. The appellant is held entitled to fullretiral benefits from the date of his superannuation till date. All paymentsdue to him be processed and made within twelve weeks from today,albeit after adjusting amount(s), if any, already paid.

52. Costs made easy.

ADDITIONAL DIRECTIONS:

53. The Impugned Judgment annexed in the paperbook is certifiedcopy obtained from the High Court. However, it is not numberedparagraph-wise.

54. In Shakuntala Shukla v State of Uttar Pradesh, 2021 SCCOnLine SC 672, this Court had the occasion to observe:

“35. … judgement should be coherent, systematic andlogically organised …”.

55. Likewise, in State Bank of India v Ajay Kumar Sood, 2022

SCC OnLine SC 1067, this Court opined:

“21.It is also useful for all judgments to carry paragraphnumbers as it allows for ease of reference and enhances thestructure, improving the readability and accessibility of thejudgments.A Table of Contents in longer version assistsaccess to the reader.”

(emphasis supplied)

56. It is desirable that all Courts and Tribunals, as matter ofpractice, number paragraphs in all Orders and Judgments in seriatim,factoring in the judgments afore-extracted.

57. The learned Secretary-General shall circulate this judgementto the learned Registrars General of all High Courts, to place the samebefore Hon’ble the Chief Justices, to consider adoption of uniformformat for Judgments and Orders, including paragraphing. The learnedChief Justices may direct the Courts and Tribunals subordinate to theirHigh Courts accordingly as well.

Divya Pandey(Assisted by : Shevali Monga, LCRA)

Appeal allowed.