Jogeswar Swain v. UOI & Ors

order as to costs.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE) FEBRUARY 21, 2013

W.P.(C) 17430/2006 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 22.01.2013 Decided on: 21.02.2013 + W.P.(C) 17430/2006 SHRI JOGESWAR SWAIN …….Petitioner Through: Ms. Saahila Lamba, Advocate. Versus UNION OF INDIA AND ORS. ….Respondents Through: Sh. Amrit Pal Singh, CGSC with Sh. Bhupinder Sharma, Law Officer, for Resp. Nos. 1 to 4. HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA MR. JUSTICE S. RAVINDRA BHAT % 1. The petitioner joined the Border Security Force (BSF) as a Constable (92 BN BSF Kalyani Nadia) on 10.05.1995. Subsequently, he was posted as Constable in Kashmir and discharged his duties at different times, in Punjab, Manipur and Assam. He states that he was rewarded for his duties in tackling terrorists at Manipur and that he had never earned any adverse remarks or entry during his entire career. When he was working as Constable in 128 BN, BSF, Patgaon, Kamrup in Assam, he was deployed for security aid duty to Dr. (Mrs.) Somy Dey Sarkar, who used to reside in the BSF Campus at Guwahati since 26.01.2004. It is stated that while on such duty, on 17.06.2005, W.P.(C) 17430/2006 Page 2 Dr. (Mrs.) Somy Dey Sarkar instructed him at 07.45 PM to leave her quarters as she was about to bathe. He, therefore, left the quarters. Dr. Sarkar thereafter alleged that she found/noticed two camera flashes within a span of few seconds from the window of the bathroom where she was bathing. She immediately shouted for help; her mother, Smt. Dipali Dey Sarkar went outside and found nobody. It was alleged that the matter was immediately reported to the Chief Medical Officer, Dr. A.C. Karmakar over telephone; acting on his advice, she instructed the Gate Commander to stop the petitioner from leaving the BSF Campus. The BSF authorities thereafter investigated the matter and ultimately recorded the petitioner"s admission; a written report was prepared and a proceeding was drawn-up against the petitioner under Rule 49 of the BSF Rules, 1969. In the course of the proceedings, it was alleged that the BSF authorities seized one Kodak Camera make EC-300 with a photo reel from the house of Constable Kunnu Thamaria, adjacent to the quarters of Dr. Sarkar. The seizure memo stated that the camera was used to take pictures of Dr. Sarkar. The petitioner was placed under open arrest on 20.06.2005 and taken into custody by the BSF the same day. By order dated 21.06.2005, the Commandant of 128 BN BSF issued an order for recording of evidence, directing that the proceeding in that regard should be completed by 29.06.2005. The petitioner claims that he apprehended that his wife might be sexually harassed by another Constable by taking advantage of his arrest, which he expressed to the concerned authorities, leading to allotment of a quarter inside the Campus, on 22.06.2005. W.P.(C) 17430/2006 Page 3 2. Pursuant to the directions of the Commanding Officer, the Deputy Commandant recorded the evidence of the prosecution witnesses whilst the petitioner was in custody. In all, 10 witnesses were examined and the statement of the accused was recorded at the end of the proceedings. The concerned official, i.e. the Deputy Commandant certified that the Record of Evidence (RoE) directed by the Commandant was completed on 29.06.2005. On the basis of the Record of Evidence, the Commandant of the petitioner"s Batallion was of the opinion that the case be presented before the Security Force Court, and intimated accordingly, on 05.07.2005. The petitioner was also asked to intimate names of 3-4 officers of his choice, to defend him at the trial. 3. The charge framed on 19.07.2005 is as follows: "AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that he, At BSF Campus, Patgaon, Guwahati, on 17.06.2005 at 2000 hours, improperly and without authority took photograph of Dr. (Mrs.) Somi Dey Sarkar, L.M.O., SHQ, BSF, Guwahati from the outside window of bath room of her quarter No.1, Type-III at BSF Campus, Patgaon, Guwaha