UNION OF INDIA & OTHERS versus JOGESHWAR SWAIN

Citation: [2023] 12 S.C.R. 117 · Decided: 05-09-2023 · Supreme Court of India · Bench: J.B. PARDIWALA · Disposal: Dismissed

Judgment (excerpt)

[2023] 12 S.C.R. 117 : 2023 INSC 802
CASE DETAILS
UNION OF INDIA & OTHERS
v.
JOGESHWAR SWAIN
(Civil Appeal Nos. 8629-8630 of 2014)
SEPTEMBER 05, 2023
[J. B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Whether the High Court was justifi ed in 
setting aside the dismissal order of the constable found guilty of misconduct, 
since it was vitiated by infraction of the prescribed procedure as also was 
based on no evidence.
Service Law – Border Security Force Act, 1968 – Border Security 
Force Rules, 1969 – rr. 49(3), 142(2) – Dismissal from service – Plea 
of guilty – Procedural safeguards u/r. 142(2) – Non-compliance of – 
Allegations against Border Security Force constable of clicking the 
photographs of lady doctor while she was taking bath – Proceedings 
initiated by the Summary Security Force Court wherein constable 
pleaded guilty – Order of dismissal from service against the constable 
– Set aside by the High Court on the ground of non-compliance of the 
prescribed procedure as also no evidence – Correctness:
Held: High Court was justifi ed in fi nding the dismissal of the constable 
on the basis of the plea of guilty unwarranted and liable to be set aside in 
exercise of powers u/Art. 226 – Abstract of evidence recorded was not 
provided to the constable and twenty-four hours’ time was not given to 
him for refl ection thus, a clear infraction of the proviso to sub rule (3) of 
r. 49 – Confession, if any, made during the course of preparation of the 
record of evidence, liable to be ignored – Minutes of the proceedings of 
the SSFC was nothing but a verbataim reproduction of the statutory rule, 
thus, non-compliance of r. 142(2) – Minutes of the proceedings recording 
the plea of guilty did not bear the signature of the constable – In absence of 
signature of the constable, pleading guilty appears to be an unnatural conduct 
117
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
118
and further dents the credibility of the SSFC proceeding – Furthermore, 
there was no eye-witness of the incident; the camera was recovered from 
some other person’s house; the witness to the keeping of the camera by the 
constable, in her previous statement made no such disclosure; there was 
no cogent evidence with regard to ownership of that camera; and, even the 
reel was not developed to confi rm the allegations – In these circumstances, 
heavy burden lay on the department to satisfy the conscience of the Court 
that the plea of guilty was recorded after due compliance of the procedure 
prescribed and the confession was made voluntarily – More so, when the 
record of evidence contained no worthwhile evidence regarding the guilt of 
the constable, the SSFC ought to have advised the petitioner to withdraw the 
plea of guilt – In view thereof, not a fi t case for interference in exercise of 
the jurisdiction u/Art. 136 – Constitution of India. [Paras 27, 28 and 35-39]
Border Security Force Act, 1968 – s. 87 – General rules as to 
evidence – Proceedings before the Security Force Court – Applicability 
of the Evidence Act:
Held: By virtue of s. 87 of the BSF Act, the general rules of evidence 
as laid in the Evidence Act, subject to the provisions of the BSF Act, are 
applicable to all proceedings before Security Force Court – Thus, by virtue 
of s. 145 of the Evidence Act, witness may be cross examined as to previous 
statements made by him – Evidence Act, 1872 – s. 145. [Para 28]
Border Security Force Rules, 1969 – r. 142(2) – Plea of guilty – 
Procedural safeguards u/r. 142(2):
Held: Sub-rule (2) of r. 142 would indicate that on the accused pleading 
guilty, before a fi nding of “guilty” is recorded, the SSFC is required to 
ascertain whether the accused understands the nature and meaning of the 
charge to which he has pleaded guilty as also must be informed of the general 
eff ect of that plea and of the diff erence in procedure which will be made by 
the plea of guilty – 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 – Strict 
adherence of the procedural safeguards laid down in sub-rule (2) of r. 142 
is warranted before accepting a plea of guilty. [Paras 34 and 35]
119
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8629-8630 
of 2014.
From the Judgment and Order dated 21.02.2013 of the High Court 
of Delhi at N

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