UNION OF INDIA AND ORS. versus MUDRIKA SINGH

Citation: [2021] 11 S.C.R. 1106 · Decided: 03-12-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 11 S.C.R.
[2021] 11 S.C.R. 1106
1106
UNION OF INDIA AND ORS.
v.
MUDRIKA SINGH
(Civil Appeal No. 6859 of 2021)
DECEMBER 03, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
A.S. BOPANNA, JJ.]
Border Security Force Act, 1968 – s.24(a) – BSF Rules 1969
– Unamended r.51 and amended r.51 (amendement in 2011) –
Disgraceful conduct – Punishment under – The incident in question
is alleged to have taken place on the night intervening 16 and 17
April 2006 – The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours when the respondent-Head
Constable is alleged to have committed an act of sexual assault on
him – Record of Evidence (RoE) was submitted to the Commandant
– The Commandant noted that there was an inconsistency in the
statements of the witnesses as regards the date on which the incident
had occurred – The Commandant called for the preparation of an
additional RoE – Summary Security Force Court (SSFC) found
respondent guilty and demoted him to the rank of a Constable as a
punishment – The Appellate Authority-the Director-General of BSF
commuted the sentence of reduction to the rank of Constable by
substituting it with the following: (i) To forfeit 05 years services for
the purpose of promotion; (ii) To forfeit 07 years past service for
the purpose of pension; and (iii) To be severely reprimanded – A
writ petition was filed by the respondent before the High Court,
which was allowed and order of the punishment was set aside –
Before the Supreme Court, two questions of law were raised: (i)
whether the Commandant has the jurisdiction to direct preparation
of an additional RoE; and (ii) whether the SSFC is under an
obligation to record reasons under Rule 159 of the BSF Rules 1969
when it determines the guilt of an accused – Held: The unamended
sub-rule (2) of Rule 51, as was applicable to the facts of the present
case, cannot be construed to impose a prohibition on the
Commandant to seek clarification, and for that purpose of ordering
an additional RoE, to facilitate or aid the further processing of the
case – Rule 51(2) does not contain any such prohibition – On the
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contrary, sub-rule(1) to Rule 48 indicates that the officer ordering
the RoE may either prepare an RoE himself or detail another officer
to do so – Sub-rule(4) to Rule 48 empowers the officer to ask any
question that may be necessary to clarify the evidence – If such a
power is conferred upon the officer ordering the RoE while preparing
the RoE himself, it would follow by necessary implication, that such
a power is available to the Commandant even when the RoE is
ordered to be prepared by another officer – The mere fact that a
specific provision empowering the Commandant to call for further
evidence was introduced in 2011 cannot result in the conclusion
that absent such a power being expressly incorporated, the power
did not vest in the Commandant – As far as obligation of SSFC to
record reasons is concerned, Rule 149 does not either expressly or
by necessary implication impose a mandate on the SSFC to record
reasons when it renders its findings of guilt on a case referred to it
– Thus, the punishment which was imposed on the respondent is in
compliance with clauses (a) to (g) of s.48(1).
BSF Rules 1969 – Unamended r.51 and amended r.51
(amendement in 2011) – Effect of amendment in r.51 – Clarificatory
nature – The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours on the night intervening 16 and
17 April 2006 when the respondent-Head Constable is alleged to
have committed an act of sexual assault on him – Record of Evidence
(RoE) was submitted to the Commandant – The Commandant noted
that there was an inconsistency in the statements of the witnesses as
regards the date on which the incident had occurred and ordered
an additional RoE – Whether the commandant prior to the
amendment of r.51 in 2011 had jurisdiction to direct preparation of
an additional RoE – Held: When an amendment is purely clarificatory
or declaratory in nature, it is deemed to operate retrospectively –
The fact that the incident took place in the present case prior to the
date of the amendment, i.e., 25.11.2011, would make no difference
once the amendment, in the true sense of the expression, is construed
to be clarificatory in nature – Against this backdrop, the
Commandant was acting within his jurisdiction in ordering an
additional RoE to clarify the date of the incident

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