/2023 INSC 0802/ Civil Appeal Nos. 8629 -8630 of 2014 Pag e 1 of 31 REPORTABLE IN THE SUPREME COURT OF INDIA C IVI L APPELLATE JURISDICTION C IVIL APPEAL NO S.8629 -8630 OF 2014 UNION OF INDIA & O THERS … Appellant s Versus JOGESHWAR SWAIN … Respondent J U D G M E N T MA NO J M ISRA, J. 1. Th ese appeal s 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 a llowe d, the punishment of dismissal i mposed upon the original petitioner was set aside and a direction was issued that the origi nal petitioner would be ent itled to full consequential be nefits except salary to the extent of 50% . The ap pellant s ha ve also cha llenged the order of the High Court dated 22.11.2013 , by which the review petition of the appellants seeking a revie w of the order dated 21.02.20 13 was dismissed , though 2023INSC802 Civ il Appeal Nos. 8629 -8630 of 2014 Page 2 of 31 certain observations made in the earlier order were recalled . FACTS 2. The original peti tion er /acc used (the respondent herein) was a Constable (General Duty) in the Border Security Force ( in sho rt “BSF ”). The case against him was that w hile he was posted as a securit y aide to a lady doctor , on 17.0 6.2005, at about 7.45 pm, he cli cked 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 quarte r as she were to take a bath ; while she was bathing, she noticed through th e window o f her bathroom two cam era flas he s; s uspecting foul play, she raise d an alarm ; on her alarm, her mother w ent out but could find none ; later , the matter was reported to the Ch ief Medical Officer ; t he B SF authorities investigated the matter and pu t the o riginal petitioner und er open arrest . During investigation a camera was recovered from the residen tial quarter of another person, who was a neighbour of that lady doctor. Thereafter, under orders of the Battalion Comm andant , proceedings were initiated against t he original petiti oner in respect of commission of an offence under Section 40 Civ il Appeal Nos. 8629 -8630 of 2014 Page 3 of 31 of the Border Security Force Act, 1968 ( in short, “B SF Act, 1968 ”), that is for committing an act prejudicial to the good order and discipline of the Force (BSF) , and reco rd of evi dence was prepared . On completion of the reco rd of e vidence, the Commandant remanded the original petitioner for trial by a Summary Security Force Court ( in short, “SS FC ”). The SSFC held its proceedings on 23 rd July, 2005 wherein the original petition er is s tated to hav e p lead ed guilty. Ba sed on that, the SSFC dis missed the origi nal petitioner from service. 3. Aggrie ved by his dis missal from service, the original pet itione r filed an appeal under Section 117 of the BSF Act, 1968 before the Appellate Authority . In th e appeal, the original petitioner refuted the allegations of clicking pic tures of the lady doctor while she was taking her bath and claimed th at ,-- w hile r ecording the e vidence, the prosecution witnesses were not offered for cross -ex amination; the re was no eviden ce fort hcoming 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 r egard to concealment of the camera in her house by the orig inal petitioner was contradictory to her previous statement where no Civ il Appeal Nos. 8629 -8630 of 2014 Page 4 of 31 such allegation was levelled by her ; noth ing incriminating was rec overe d from the possession of the orig inal 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 , h ence, the same can not be the sole basis for the pu nishment . In the alternative, the original pe titioner pleaded th at he was a young man , aged 31 years , who had diligently discharged his duties for over 11 years wit hout a complaint , therefore, even if the original pe titioner is fo und guilty, a lenient view be ta ken by taking into accou nt tha t he has old parents an d a famil y dependent on him. 4. The afor esaid statutory appeal of the original petitioner was dis missed by the Director General, BSF, New Delhi . T he let ter communicating dismissal of the appeal recited th at since the original petitioner had plead ed guilty to the charge , the SSFC justifiably held him guil ty and dismiss ed hi m from ser vice . 5. Aggrie ved by dismissal of h is appeal , the original petitioner f ile d writ petition before the H igh Court. FINDINGS OF THE HIGH COURT 6. Before the H igh Court, the order s impugned in the wri t petition were questioned on tw o grounds: Civ il Appeal Nos. 8629 -8630 of 2014 Page 5 of 31 (a) that there w ere proce dural infirmities in conducting the proceedings and recording of evidence; and (b) that the evidence recorded did not incu lpate hi m. With regar d to the first ground , it was pointed out that R ule 60 of the Border Secu rity Force Rules, 1969 ( in short, BSF Rules, 1969 ”) dis qualifie d an officer f rom serving as a Cou rt if he was the officer w ho convened the Court; or is the Commandant of the accused. The High Court observed that the SSFC was no t only convened but also presided over by the Commandant of th e original petitioner whi ch vitiated the proceedings of the SSFC . The H igh Court , however , also examine d as to whether there was any worth -while evidence against the or igi nal petitioner. After consider ing the statement of the witnesses recorded while preparing the record of evidence , the High Court in paragraph 2 3 of its judgment observed : “23. A close analysis of the evidence would highlight the fo llowing circumstances: (1) PW -1 no tice d two camera flashes, whilst sh e was bathing, around 7 -45 PM on 17 th 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 spo t, also could not see anyone. (2) The petitioner was asked to repo rt back immedia tely; he did so. During the intervening period , he went to Const. Kunnu ’s house, and borrowed boots. This wa s verified from the latter ’s wife and sister -in -law (PW 9) the s ame day. PW -9 did not mention an ythi ng about a ny Civ il Appeal Nos. 8629 -8630 of 2014 Page 6 of 31 camera or the petitioner having asked her to hide it, when officials enquired from her. (3) No incri minating objec t or article including the camera was seized from the pe titioner ’s possession. It is uncle ar as to who owned the camera seized by the respondents. (4) The petitioner was placed und er open arrest the next day. He – according to PW -7, PW -8 and another witne ss, confessed to having c licked with the cam era and having hidden it with PW - 9. The next day, PW -9 made another statement , leading to recovery of the came ra. This internal contradicti on between the version of PW -9 assumes importance because in her fir st st atement, she never said a nything ab out the camera. Her deposition in the Record of Evid enc e pr oce eding was over a week later, i.e. 25.06.2005. (5) No written record of the confess ion said to have been made on 18 th June, 2005 exi sts; (6) Most importantly, the camera reel (thoug h recov ered on 18 th June , 2005) was never developed. It was the best evide nce of the petitioner ’s cu lpability. ” 7. In addit ion to the above observations, the High Court found that while preparing the record of evidence , the last statement of the prosecution witnesses w as recorded on 29 .06. 2005 and on the same day, without even giv ing twenty four hours’ time to the original petitioner to re flect up on th e evidence , as is the mand ate of the proviso to sub rule (3) of Rule 49 of the BSF Ru les, 1969, the statement of the original petitioner was recorded. Civ il Appeal Nos. 8629 -8630 of 2014 Page 7 of 31 8. The High Court noticed that the minutes of the pro ceed ing recording acceptanc e of guilt by the origina l 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 e vid ence 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 . 10. After the wri t petition was allowed b y the High Court, the appellants herein filed a review petition claimin g 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 tr ial is by a “Ge neral ” or a “Pett y” Security Force Court , w hereas the original petition er was tried by a “Summary ” Sec uri ty Force Court in terms of section 70 of the BS F Act, 1968. 11. On consider ation of the plea taken in the review petition, the High Court reca lled i ts observations reg arding infraction of Rule s 60 and 61 of the B SF Rules, 1969 in conduct of the proceedings , but rejected the review petition as the Civ il Appeal Nos. 8629 -8630 of 2014 Page 8 of 31 writ petition was allowed on co nsideration of the merits of the prosecution evidence . 12. Aggrieved by the order s of the High Court , the Union of India and BSF administration are in appeal before us . 13. We have heard Mr. R. Bala subramanian, learned senior counsel , for the appellants ; and Mr. Yasobant Das, learned senior counsel , for the respondent (origi nal pe titioner) . SUBMISSIONS ON BEHALF OF THE AP PELLANT S 14. The lea rned counsel for the appell ant s submitted : (a) The Hig h Court exceeded its jurisdiction by apprec iating the evidence led while preparing the recor d of evidence when the SSFC decided the matter on acceptance of guilt by the original petition er. (b) There was no procedural defect in the tr ial or in the investigation, which prece ded it. (c) The reco rd of evidence indica te d tha t thoug h initially the original petitioner de nied the allega tions but , ultimately, he adm itted his guilt . Otherwise also, from the statement Civ il Appeal Nos. 8629 -8630 of 2014 Page 9 of 31 of PW -9, recorded during preparation of the record of evidence , it was proved that the original pet itioner had kept that camera in her house. (d) Ad verse inference agains t the department could not have been drawn for no t develop in g the reel of that camera because the original petitioner had admi tted his guilt . (e) Absence of signature of the accus ed on the minutes of the proceedings recording acceptance of guilt by him does not violate any of the Rule s cont ained in the then operating BSF Rules, 1969 , as such requireme nt was insert ed in the Rule with effect from 25.11.2011. In a nutshell, the submission s on beh alf of the appellants were that there was no infraction of the proce dur e prescri bed; the principles of natura l justice were duly observed; the decision was b ased on acceptance of guilt ; and since the or iginal petitioner is part of a disciplined force and w as found guilty of clicking photographs of a lady doctor while she w as taking a bath , and whom he w as re quired to Civ il Appeal Nos. 8629 -8630 of 2014 Page 10 of 31 protect, the punishment of dismiss al cannot be faulted . Consequently, the order of the Hig h Court deserves to be set aside . SUBMISSIONS ON B EHALF OF THE RESPONDENT 15. Per Contra, on behalf of the respondent it was submitted that the order passed by the H igh Court is just and proper based on appreciation of the materials on record . Moreover, taking into account that there was no eyewitnes s of photographs bei ng clicked by the or iginal petit ioner and no incriminating object or arti cle was recove red from the original petitioner ’s posse ssion , there was no reason for the original petitioner to accept his guilt. Further , as the whole case of the department is based on th e conf ession , which is disputed by th e original petitioner , and the minutes of the proceeding recording confession is not signed by the pet itioner , the High Court rightly explored the evidence to find out whether in the circumstances making of such a confes sion was probable or not . Otherwise also, before the SSFC , no evidence wa s le d and the recor d of evi dence 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 a n SSFC . In these circumstances, there Civ il Appeal Nos. 8629 -8630 of 2014 Page 11 of 31 was no occasion for the original petition er to admit his guilt . Consequently, once the High Co urt on overall assessment of the materials placed on record ha s taken a sound view of the matter , it would not be a fi t case where the discret ionary power s under Artic le 136 of the Constit ution of India be invoke d to set aside an order whereby substantial justice has been done . 16. In addition to t he above, the learned co unsel for the respondent pointed out cer tain proc edur al infirmit ies , which , according to him , vitiated the proceedings, namely, - (i) The first conf essional statement was recorded in viol ation 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 man ner laid dow n in sub -rule (3) of Rule 48 before recording his statement . Moreover, it was recorded on the same d ay when the deposition of the last witness was recorded , that is, without giving 24 hours ’ time for ref lection , as i s the man date of Civ il Appeal Nos. 8629 -8630 of 2014 Page 12 of 31 the proviso to sub -rule (3) of Rule 49 of the BSF Rules, 1969 ; (ii) When the conf ession was recorded , the original pe titioner was under open arrest , therefore such a confession would be hit by Section 26 of th e Indian Evidence Act , 1872 which be comes appl icable by virtue of Section 87 of the BSF Act, 196 8; (iii) The SSFC comprised of the Comman dant of the ac cused as su ch he was dis qualified from being a part of the Court by virtue of Ru le 60 of the BSF Rules , 1969 . T hat apart , the Comm andant 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 sub mission of the learned counsel f or the respondent is that the dismissal of the origi nal petitioner (the responde nt herein) is not only vi tiated by i nfraction of prescribed proced ure but is based on no evidence . Ther efore, the order passed by Civ il Appeal Nos. 8629 -8630 of 2014 Page 13 of 31 the High Court is no t liable to be interfered with in exercise of jurisdiction of this Court under Article 136 of the Constitution of I ndia. DISCUSSION 17. We have considered the submissions and have perused the record. A s we notice that the order of dismissal from service was based on original petitione r’s acceptance of his guilt before the SSFC, before proceeding further, it would be usefu l to have a glimpse of the relevant provision s of the B SF Act, 1968 and the B SF Rules, 1969 concerning a “Security Force Court ” and pr oceedings before it . 18. Secti on 2 (u) of the BSF Act, 1968 defines “Security Force Court ” as , “me ans a court ref er red to in section 64 ”. Section 64 o f the BSF Act provides : “… there s hall be three kinds of Security Force Courts: - (a) General Security Force Cou rts; (b) Pett y Security Force Courts; and (c) Summa ry Secu rity Force Courts. ” 19 . Section 87 , which applies to all kinds of Security Force Co urts , provides that the Indian Evidence Act, 1 872 ( Act No. 1 o f 1 872) shall, subject to the provisions of th e BSF Act, 1968, apply to all proceedings before a Security Force Court. 20. In th is case the dis missal order was passed by a n SSFC . It would thus be appropriate to have a Civ il Appeal Nos. 8629 -8630 of 2014 Page 14 of 31 look at the relevant provisions concerning an SSFC . Section 70 provides : - “S.70. Summary Security Force Court. — (1) A Sum mary Security Force Court may be held by the Commandant of any unit of the Force and he alone shall constitute the Court . (2) The procee dings shall be attended throughout b y two other persons who shall be officers or subordina te officers or on e of either, and who shall not as s uch, be sworn or affirmed. ” 21. Punishment s 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 Gov ernment to make rules for th e purpose of carrying into effect the provisions of th e BSF Act , 1968 . Sub -section (2) of Section 141 , inter al ia, provides : “(2) In particular, and without prejudice to the gen erality of the fore going power to frame such rules as may provide fo r,-- (a) … . (b) … . (c) … .. (d) … … (e) the removal, retirement , release or discharge from the service of persons subject to th is Act; (f) … … Civ il Appeal Nos. 8629 -8630 of 2014 Page 15 of 31 (g) the convening, constitution, adjournment, disso lution and sit tings of Security Force Cour ts, the proc edure to be observed in trials by such courts, the persons by whom an accused may be defended in such trials and the appearance of s uch persons thereat; (h) … … . (i) the forms of orders to be made under the provision s of this Act relating to Security Force Cou rts and the a wards and the infliction of death, imprisonment, and detention (j) … .. (k) any matter necessary for th e purpose of carrying this Act into execution, as far as it relates to the investi gat ion, arrest , custody, trial, and pu nishment of offenc es triable or punishable under this Act (l) … … (m ) th e convening of, the constitution, proce dure and practice of , Courts of inquiry, the summoning of witnesses before them and the administration of oaths by such Co urt s (n ). ... (o) . … ” 23. In exercise of its powe rs conferred upon it by Section 141 of the BSF Act, 1968, the Central Government not ified BSF Rules, 1969 . Chapter V II of the BSF Rules, 1969 deals with invest igation and summary disposa l. Rule 43 provides that where it is alle ged th at a person subject to the Act other than an Civ il Appeal Nos. 8629 -8630 of 2014 Page 16 of 31 officer or a subordinate officer has committed an offence punis hable thereunder, the allegation shall be reduced to writing i n the form s et out in Appendix IV. Whereas, if the offence is allegedly committed by a n 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. Hearin g o f the charge against an enrolled person. — (1) T he charge shall be he ard by the Comm andant of the accused in the following man ner: - (i) The charge and stateme nts of witnesses , if recorded, shall be read over to t he accused; (ii) If wr itten statements of witnesse s are not available , or where the Commandant considers it necessary to cal l any witne ss, he shall hear as ma ny witnes ses as he may consider e ssential to enable him to dete rmine the issue ; (iii) Wher ever witnesses are called by th e Commandant, t he accused shall be giv en opportunity to c ross -examine them ; (iv ) Thereafter, the accused shall be given an opp ortu nit y to make a statement in his defence. (2) After hearing the ch arge under su b-rule (1), the Commandant may — (i) award a ny of the punish me nts which he is empowered to award, or (ii) dismiss the charge, or Civ il Appeal Nos. 8629 -8630 of 2014 Page 17 of 31 (iii) remand the accused, for p reparing a record of evidence or for preparation of an abstract of evidence agains t him, or (iv) remand him for trial by a Summary Securi ty Fo rce Cour t: Provided that, in case where the Commandant awards m ore than 7 days ’ of imprisonment or deten tion he shall reco rd the substance of evidence and the defence of the accused ...” 24 . In the instan t case, i t is n ot in dispute that the Commandant on 21.06.2005 ordered for preparing the record of evidence . 25. Rule 48 deals with preparation of the record of evidence. It pro vides that where the officer orders for the record of ev idence , he may either prepare the record of evi dence himself or de tail another officer to do so. Sub -rule ( 2) of R ule 48 provides t hat the witnesses shall give t heir evidence in the presence of the accused and the accused shall have right to cro ss -examine al l witnesses who give evidence against him. Sub rule ( 3) of Rule 48 provides that after all the witnesses against the accused hav e been examined, he s hall be ca utioned in the following terms: “You may make a statement if you wi sh to do so, you are not bound to make one and wh atever you state shall be taken down in writing and may be used in evidence .” After having been cautioned in t he Civ il Appeal Nos. 8629 -8630 of 2014 Page 18 of 31 afo resaid man ne r whatever t he accuse d states is to be taken dow n in writing. Sub -rule s (4) to (6) of Rule 48 provide as follows: “(4) The accused may call witnesses in defenc e and the of ficer recording the evidence may ask any question that may be n ecessary to clarify the evidence given by such witnesses. (5) All witnesses shall gi ve evidence on oath or affirmation : p rovided that, no oath or affirmation shall be given to the accused nor sha ll be cross -examined . (6) (a) The statements given by wit ne sses shall ordinarily be reco rded in narrative form and the offi cer recording the evidence may, at the re quest of the accused, per m it any portion of the evidence to be recorded i n the form of question and answer; (b) The witnesses shall sign their stateme nts 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 of ficer recording the evidence shall give a certificate in the following form: - “Certi fied that th e recor d of evidence ordered b y … Commandant … was ma de in the p re sence and hearing of the accused and the provisions of rule 48 have been complied with. ” 26. Rule 49 of the BSF Rule s, 1969 provides for preparation of an abstract of evidence. Sub -rule (2)( a) of R ule 49 pro vides that the abstract of evidence , shall include ,--- (i) signed statements of witnesses Civ il Appeal Nos. 8629 -8630 of 2014 Page 19 of 31 wher ever availa ble or a precis thereof, or ( ii) copies of all documents intended to be produced at the tri al. Sub -rule 2(b) of Rule 49 provi des th at where signed statements of an y witnesses are not availa ble a precis of their e viden ce shall be included. Sub -rule (3) of Rule 49 provides : “49 (3). A copy of the abstract of evi den ce shall be given by the officer making the same to the accused and the accused shall be given an oppor tu nity 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: Provid ed that the accused shall be given such time as ma y be reasonable in the circumstances but in no case less than twenty -four ho urs after receiving th e abstract of evidence to make his stat ement. ” 27. In the instant cas e, fro m the materials bro ught on record we find that the o riginal petitioner was placed under open arrest on 20.06.2005. On 21.06.2005, the Commandant of 128 B attali on BSF, where in the original petitioner was posted , issued an or der for reco rding 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 pe titioner w as asked to give h is s tatemen t. According to the origin al petitio ne r, the abs tr act of evi dence wa s not provided to him and twenty -four hours ’ tim e was not given to Civ il Appeal Nos. 8629 -8630 of 2014 Page 20 of 31 hi m for re flection therefore, there was a clear infraction of the proviso to sub rule (3) of Ru le 49 of the BSF R ules, 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, t here a ppears substance in the aforesaid submission of the learned c ounse l for t he ori ginal pe tit ioner. 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 ori ginal pe titioner 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 statemen t, if any, recorded during investi gati on or preparation of the record of evidence could have been used as a previous statement of the witness for the purposes of c ross -examining the witness as and when the witness was examined before the Security Force Cou rt. Thi s we say so, because by virtue of Section 87 of the BSF Act, 1968 the general rules of evidence as laid in the Evidence Act, 1872, sub ject t o the provisions o f the BSF Act, 1968 , are applicable to all proceedings before a Security Force Court. Therefore, by virtue of S ection 145 of the Evidence Civ il Appeal Nos. 8629 -8630 of 2014 Page 21 of 31 Act, 1872 , a witness may be cross examined as to previous statements made by him . 29. Insofar as th e proceedings against the original petitioner befor e the SSFC are concerned, a perusal of the record would reflect that they commenced on 23 .07. 2005 at the Headquarte r of 128 B attalion, BSF . As per record of the proceedings dated 23.07.2005 , the charge -sheet was read out and explained to the accused (original petitioner) an d the accused was asked whether he is guilty or not of the charge. As p er record of the proceed in gs, the answer of the accu sed 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, th e court explain s to the accused the meaning of charge (s) to which he has pleaded guilty and as certains that the acc used understands the nature of the charge(s) to which he has plead ed guilty. The court also inform the accused the general effect of that plea and the differ ence in procedu re which will be fol lowed cons equent to the said plea. The cour t having satisfied it self t hat the accused under stands t he charge (s) and the effec t of his plea of gui lty, accepts and records the same. The provisions of Rule 14 2(2) are complied with. ” 30. The reafter, the proceeding on the plea of guilt y is recorded in following terms : - Civ il Appeal Nos. 8629 -8630 of 2014 Page 22 of 31 “Th e accused N o. 95922021 6; Rank : Constable ; Name : Jogeshwar Swain of 128 BN BSF , is found gui lty of the charge. The reco rd of evidence is read (translated), explained, mar ked “K” signed by the Court and attached to the proceedings. Q. - Do you wish to make a ny statement in referenc e to the charge or in mitigat ion of punishment? Ans. The accused says: I have committed an offence. Please pard on me. I wil l not repeat in future. Q. Do you wish to call any witness as to character? Ans. No. ” 31. The minutes of the proceedings refle ct that after the defe nce 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 g uilty of the cha rge. ” Thereafter before pro nouncing the sentence , original petitioner ’s past record was considered as under : “It is within m y own knowledg e from the records of the Battali on that the accused has n ot been previously convict ed by Security For ce Court or Criminal Court … That the following is a fai r and true summary of entries in his defaulter sheet exclusive of Civ il Appeal Nos. 8629 -8630 of 2014 Page 23 of 31 convictions by a Security Force C ourt or a Criminal Court Within last 12 months: Nil Since Enrolment: Nil That he is at present und ergoing N IL sentence. That, irrespectiv e of this trial, his general character has be en satisfa ctory. That his age is 30 yrs, … His service is 10 y ears , 2 m onths , 15 days and his rank is Constable 8 -5-95. T hat he has been in arrest/confi nement for NIL d ays. Th at he is in possession of the following decorations and rewards: - NIL ” After considering the past record of the original petitioner, sentenc e was awarded in following terms: “SENTENCE BY TH E COURT Taking all these matters into conside ration. I now sentence the Accus ed No. 959220216 Rank Constable ; Name : Jogeshwar Swain of 128 Bn BSF to be dismiss ed fro m the service. Signed at H Q 128 Bn BS F Patgaon, Ghty -17 on this 23 rd day of July 2005 . Sd/ - Commandant. Dt/ - 23.07.2005 ” 32. A pe rusal of the minutes of the proceedings of the SSFC dated 23.07.2005 wou ld indicate that though the plea of guilt y was rec orded during the course of the proce edings dated 23.07.2005 but the Civ il Appeal Nos. 8629 -8630 of 2014 Page 24 of 31 minute s are not signed by the original petitioner. It is only sig ned by the Commandan t 128 Battalion BSF, namely, Ghanshyam Purswani . 33. Rule 142 of the BSF Rules, 1969 which f all in C hapter XI of the BSF Rules, 1969 deal s with the manner in which a n SSFC is required to record the plea of guilt y. Rule 143 provides for the procedure after the plea of g uilty is recorded. The relevant portion of Ru le 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 a ccused person ’s plea of “Guilty ” or “Not Guilty ” or if he refuses to plea d or does not plead inte lligibly either o ne 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 th e Court; but before it is record ed, the Court shall ascert ain that the accused understands the nature of the charge to w hich he has pleaded guilty and shall inform him of t he general effect of that plea, and in partic ular of the me aning of the charge to wh ich he has pleaded guilty, and of the diff erence in proced ure which will be made by the p lea of guilty and shall advise him to withd raw that plea if it appears from the record or abstract of evidence (if any) or other wise that the accused ought to plead no t guilty. ” 34. A plain reading of sub -rule (2) of R ule 142 would indicate t hat on the accused pleading guilty , Civ il Appeal Nos. 8629 -8630 of 2014 Page 25 of 31 before a finding of “G uilty ” is recorded, the SSFC is not only required to ascertain whether the accused underst ands the nature and meaning of the charge to which he has pleaded guilty but it must also inform the accused of the general effe ct of that plea and of the difference in procedure which will be made by the plea of guilty. That apart, even if the a ccused pleads guilty, if it appears f rom the record or abs tract of ev idence or otherwise that the accused ou ght to plead not guilty, the SSFC is required to advise him to w ithdraw that plea. 35. Before act ing on the plea of guilty , compliance of the procedural safeguards laid down in sub -rul e (2) of Rule 14 2 is important as it serve s a dual purpose . First , it ensure s 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 c onse quences that he may have to suffer once he pleads guilty . This not only obviat es the possibility of a n uninformed confession but also suc h confessions that are ma de 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 confession s do not become an easy way out for decid ing cases where marshalling of evidence to prove the charge becomes difficult . It is for this Civ il Appeal Nos. 8629 -8630 of 2014 Page 26 of 31 reason that sub -rule (2) of Rule 142 requires an SSFC to adv ise the accused to withdraw the plea of guilty if it appears from th e examination of the record or abstract of evidence that the accused ough t to plead not guilty. Since, the p rocedure laid in sub - rule (2) of Ru le 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 i ndi cate as to what advise was rendered t o the accused with regard to the general effect of the plea of guilty taken by him. The minutes dated 23.07.20 05 are nothing but a verbatim reprod uction 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 r ule a nd not hing further, in our view, is no co mpliance of the provisions of sub -rule (2) of Rule 142 of the BSF Rules, 196 9. Therefore, we are of the view that the appellants cannot draw benefit fr om the minutes of the proceedings as to canvass that the plea of guilty was accepted after due compl iance of th e Civ il Appeal Nos. 8629 -8630 of 2014 Page 27 of 31 requirement s of sub -rul e (2) of Rule 142 of the BSF Rules, 19 69. 37. Furthe r, the record of the proceedi ngs of SSFC dated 23 .07.2005 does not bear the sign ature of the accused. No doubt, the requirement of having the signature of the accuse d 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 . B ut there existed no embargo in obtain ing signature of the accused to lend credence to the making of th e plea of g uilty . Absence of signatu re of the accused in this case assumes importance because here the accused denies taking such a plea and looking at t he available evidence , plea ding guilty appea rs to be an unnatural conduct . At the cost of rep etition , it be observed that the ca se against the petitioner was in respect of cl icking photographs of a lady doctor while sh e 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 ca mera by the accused (i.e., the original petitioner) , in her previous statement made no such disclosure ; there was no cogent evidence with regard to owner ship of that came ra ; and, a bove all , even the reel was no t deve lo ped to confirm the allegations. In Civ il Appeal Nos. 8629 -8630 of 2014 Page 28 of 31 these circumstances , whe n there was a chal len ge 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 C ourt that the plea of guilty was recorded after du e co mpl iance of the procedure presc ribed by the BSF Rules, 196 9. As we have already noticed that there was no prop er compliance of the procedure prescribed by sub -rule (2) of Rule 142 of the BSF Rules, 196 9, absenc e of signature of the accused in the minute s further dents the credibi lity of the SSFC proceeding . The High Court was therefore justified in looking at the eviden ce to find out whether punishment sol ely on the basis of confession (i.e., plea of guilty ) was jus tified . 38. In this context, t he High Co urt meticul ously examined the record of evidence prepared under th e direction of the Commander to come to the conclusion that except for the statement of PW -9 that the camera was hid den by the original petitioner, there was no w orthw hile evide nce in respect of his culp ab ility. The H igh Cou rt also notic ed that even PW -9 was not cons is te nt , as during investigation PW - 9 had not made any such disclosure that the original petitioner had hid den the camera in the house from where it w as recov ered. What i s important is that the Civ il Appeal Nos. 8629 -8630 of 2014 Page 29 of 31 house from where the camera was rec overed was not the ho use of the or iginal petitioner but of another constable who had his house adjoining the quarter where the lady doctor had taken her bath. Interestin gly, t here was no evidence led to indica te that the said camera was of t he original petit ioner. In th ese circum stances, w here was the occasion for the original petitioner to make confession of his guilt when there was hardly any evidence against him. Admitte dly, none had seen him clicki ng phot ographs and th e lady doctor also did not inc ulpate the origin al petitioner though she might have suspected the original petit ioner. Further, we notice that whil e preparing the rec ord of evidence als o, plea of guilty of the original petitioner was recorded , which the original petitioner claims to have been obtained under duress and without gi ving 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 R ules, 1969. At th is sta ge , we may re mind 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 Civ il Appeal Nos. 8629 -8630 of 2014 Page 30 of 31 recorded. In these ci rcumsta nces, when the original petition er had raised a plea before the High Court that his confession was involuntary and th at in fact no con fession was made by him , there was a seri ous bu rden on the non -petit ioners (i.e ., the appellants herein ), to satisfy the consci ence of the H igh Court that there had be en du e compliance of the procedure and that the confes sion was made vo luntarily. More so, when the record of evidence contained no worthwhile evidence regarding the guilt of the original petition er . In the aforesaid backdrop , the SSFC ought to have advised the original petit io ner to withdraw the plea of guilt as per provisions of s ub - rule (2) o f Ru le 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 guil ty did not b ear the s ignature of the original petitioner, in our cons idered view, the Hi gh Court was justified i n finding the dismissal of the original petitioner on the ba sis of the plea of gu ilty un warranted and liable to be set aside in ex ercise of powers under Arti cle 226 of the Co nstitution of India. The High Court was also justified in not re -opening the proceeding from the stage whe re the error crept in by noticing that it would serve no useful purpose as there was hardly Civ il Appeal Nos. 8629 -8630 of 2014 Page 31 of 31 any evidence on record and nearly a decade had passed since the date of the incident. 40. For a ll the r easons above , we do not find it a fit case for interference in exercise of our jurisdi ction under Article 136 of the Constitution of India. The appeal s are dismissed. Parties to bear their own costs. .............................. ........J. (J. B. Pardiwala ) ........ .... ..........................J. (M anoj Misra ) New Delhi; September 05, 2023