LI Network
Published on: 07 September 2023 at 10:02 IST
The Supreme Court rendered its judgment in favor of a Delhi High Court ruling that had reversed the dismissal of a Border Security Force (BSF) constable accused of photographing a female doctor while she was bathing.
A bench comprising Justices J. B. Pardiwala and Manoj Misra dismissed the appeals presented by the Central Government and the BSF administration, challenging the February 2013 verdict of the high court, which not only annulled the constable’s dismissal but also stipulated that he should receive certain consequential benefits.
The appellants had also contested in the Supreme Court the November 2013 high court order, which had rejected their request for a review of the February 2013 judgment.
The bench explained its decision, stating, “In light of the discussion above and also taking into account that the minutes of the proceedings recording the plea of guilty did not bear the signature of the original petitioner (constable), in our considered view, the high court was justified in finding the dismissal of the original petitioner on the basis of the plea of guilty unwarranted and liable to be set aside in exercise of powers under Article 226 of the Constitution of India.”
Furthermore, it emphasized that the high court’s decision not to reopen the proceedings from the point where the alleged error occurred was justified because there was scant evidence on record, and nearly a decade had elapsed since the alleged incident took place.
“For all the reasons above, we do not find it a fit case for interference in exercise of our jurisdiction under Article 136 of the Constitution of India. The appeals are dismissed,” the bench concluded.
The Supreme Court took note that the accused constable held the position of Constable (General Duty) in the BSF and was accused of photographing a lady doctor while she was bathing in June 2005. According to the allegations, the doctor had requested him to leave her quarters on the day of the incident, as she intended to take a bath. During her bath, she noticed two camera flashes through her bathroom window, prompting her to raise an alarm.
The matter was reported to the chief medical officer, leading to an investigation by the BSF authorities and the constable’s placement under open arrest.
Subsequently, under the directives of the Battalion Commandant, proceedings were initiated against him under Section 40 of the Border Security Force Act, 1968, for an act detrimental to the good order and discipline of the force, and evidence was documented.
Following the completion of the evidence record, the Commandant remanded the constable for trial by a Summary Security Force Court (SSFC), which conducted its proceedings in July 2005. During these proceedings, the constable is said to have pleaded guilty, leading to his dismissal from service, as noted by the bench. Dissatisfied with this outcome, he had filed an appeal before the appellate authority.
In his appeal, the constable refuted the allegations of photographing the lady doctor and asserted that no supporting evidence was presented against him in the testimony of prosecution witnesses.
The bench acknowledged that the high court, considering all these circumstances and the absence of a confession by the constable, concluded that there was insufficient evidence against him to admit his guilt.
“Notably, no one had witnessed him taking photographs, and the lady doctor did not implicate the original petitioner, although she may have had suspicions,” the bench noted.
