“REPORTABLE”

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL No. 1208 OF 2010 (Arising out of SLP (C) No.26717 of 2005)

Union of India & Anr. …. Appellants

Versus

Dinesh Kumar …. Respondent

WITH  

Civil Appeal Nos. 1209-1210 of 2010 @ SLP (C) Nos. 11776, 11777 of  

2006, Civil Appeal Nos. 1212-1215 of 2010 @ SLP(C) Nos. 11779, 11780,  

11783, 9252 of 2006, Civil Appeal No. 1217 of 2010 @ SLP(C) No. 13692  

of 2006, Civil Appeal No. 1219 of 2010 @ SLP(C) No. 13694 of 2006, Civil  

Appeal Nos. 1221-1235 of 2010 @ SLP(C) Nos. 13696, 13697, 13698,  

13699, 13700, 13701, 13702, 13705, 13703, 13706, 13707, 11341, 14430,  

14431, 14432 of 2006, Civil Appeal Nos. 1237-1247 of 2010 @ SLP(C)  

Nos. 14435, 14436, 14438, 14439, 14441, 14442, 14443, 14444, 14445,  

14447, 14448 of 2006, Civil Appeal Nos. 1249-1253 of 2010 @ SLP(C)  

Nos. 14450, 14451, 14918, 14919, 14921 of 2006, Civil Appeal Nos. 1255-

1259 of  2010 @ SLP(C)  Nos.  14923,  14924,  14301,  16041,  16042 of  

2006, Civil Appeal Nos. 1261-1265 of 2010 @ SLP(C) Nos. 16044, 16046,  

16047, 16048, 16051 of 2006, Civil  Appeal Nos. 1267-1271 of 2010 @  

SLP(C) Nos. 15544, 15545, 16549, 16550, 16552 of 2006, Civil  Appeal  

Nos.  1274-1275  of  2010  @ SLP(C)  Nos.  17633,  17636  of  2006,  Civil  

Appeal No. 1277 of 2010 @ SLP(C) No. 18524 of 2006, Civil Appeal Nos.  

1279-1282 of 2010 @ SLP(C) Nos. 19469, 19470, 21075, 21072 of 2006.

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J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of 62 Civil Appeals mentioned above.

2. We had, by earlier orders, directed the remand of all these matters  

to the High Court and now we proceed to give reasons in support of our  

orders.

3. All these appeals have been filed by the Union of India.  The main  

contesting respondents in all these appeals are the members of the Border  

Security Force.  The respondents in all the matters succeeded before the  

High Court, which took the view that the orders passed against them by  

the Summary Security Force Court (hereinafter referred to as ‘SSFC’ for  

short) and the appellate authority were bad and illegal, as there were no  

reasons given by any of these authorities.

4. On that count, the High Court directed remand in all the matters to  

the appellate authority under Section 117 (2) of The Border Security Force  

Act, 1968 (hereinafter referred to as ‘the Act’  for short) for rewriting the  

order, giving reasons in support of the conclusions reached by the same.  

The lead judgment was passed on 16.1.2006 in Writ Petition (Civil) No.  

9427 of 2005 filed by one Constable Hans Raj.  Relying on that judgment,  

all the other Writ Petitions in the above appeals before us were directed to  

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be disposed of.  The Union of India has now challenged the lead judgment,  

as well as other judgments, which were passed relying upon the same.

5. The common question that falls for consideration in all these appeals  

can be stated as under:-

Whether the Summary Security Force Court (SSFC) is required to  

give reasons in support of its verdict?   

Similarly,

Whether the appellate authority under Section 117 (2) is required to  

give reasons while considering the correctness, legality or propriety  

of the order passed?

6. It is a common ground that in all these appeals, no reasons were  

given by either the SSFC or by the authority under Section 117 of the Act,  

which acts as an appellate authority.

7. Before we approach this question, it must be stated in all fairness  

that  majority  of  the  Learned  Counsel  appearing  on  behalf  of  the  

respondents,  agreed  to  have  the  judgment  in  their  favour  set  aside,  

provided the matter is remanded back to the High Court for deciding the  

Writ Petitions on merits.  This was obviously because in all these matters,  

the merits of the Writ Petition were not considered and all the Writ Petitions  

were allowed for the sole reason that the appellate authority or the SSFC  

had not recorded any reason in support of the verdict given by them.  In  

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fact, Shri P.P. Malhotra, Learned ASG also fairly conceded that the Writ  

Petitions were not  decided on merits  by the High Court  and they were  

allowed  on  the  preliminary  ground  that  no  reasons  were  given  by  the  

authorities under the Act.  There were very little or almost no arguments  

led on behalf of the respondents supporting the order.  However, in order  

to  put  the  record  straight  and  before  acting  on  the  request,  we  must  

consider  the  arguments  led  by  the  Learned  ASG,  who  contended  that  

there is no requirement of giving any reasons either by the SSFC or by the  

appellate authority under Section 117 of the Act.

8. Under the scheme of The Border Security Force Act, there are three  

kinds of Security Force Courts.  Section 64 of the Act provides for those  

three  kinds,  they  being  (a)  General  Security  Force  Courts;  (b)  Petty  

Security Force Courts; and (c) Summary Security Force Courts.  We are  

concerned  here  only  with  Summary  Security  Force  Courts  (SSFC).  

Section 70 provides that a SSFC may be held by the Commandant of any  

unit of the Force and he alone shall constitute the Court.  Sub-Section (2)  

of Section 70 suggests that the proceedings shall be attended throughout  

by two other persons who shall be officers or subordinate officers or one of  

either,  and  who  shall  not  as  such,  be  sworn  or  affirmed.   Section  74  

speaks about the powers of a SSFC.  Sub-Section (1) thereof provides that  

the SSFC may try any offence punishable under the Act, subject to the  

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provisions of Sub-Section (2).  Sub-Section (2) provides that when there is  

no grave reason for immediate action and reference can without detriment  

to discipline be made to the officer empowered to convene a Petty Security  

Force  Court  for  the  trial  of  the  alleged  offender,  an  officer  holding  a  

Summary Security Force Court shall  not try without such reference any  

offence punishable under any of the Sections 14, 17 and 46 of this Act, or  

any offence against the officer holding the Court.  Sub-Section (3) provides  

that  the SSFC could  try  any person,  subject  to  the Act  and under  the  

command  of  the  officer  holding  the  Court,  except  an  officer  or  a  

subordinate  officer.   Sub-Section  (4)  controls  the  power  of  granting  

sentence and suggests that the SSFC may pass any sentence except the  

sentence of death or imprisonment for a term exceeding the limit specified  

in sub-Section (5).   Sub-Section (5) provides the limit  referred to under  

sub-Section (4) as under:-

(a) one year, if the officer holding the Security Force Court has  

held  either  the  post  of  Superintendent  of  Police  or  a  post  

declared  by  the  Central  Government  by  notification  to  be  

equivalent thereto, for a period of not less than three years or  

holds a post of higher rank than either of the said posts; and

(b) three months, in any other case.

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It is, therefore, clear that the SSFC can try all the offences, however,  

has limited powers in respect of the sentence which also depends upon  

the rank of the officer holding the SSFC.  The offences under the Act are  

as mentioned in Chapter III while Chapter IV deals with the punishments.  

Section  117  of  the  Act  provides  for  remedy  against  order,  finding  or  

sentence of  Security  Force Court,  which  could  include the SSFC also.  

Under sub-Section (1) thereof, a petition could be filed by the aggrieved  

person  before  such  person,  officer  or  authority,  who  is  empowered  to  

confirm  any  finding  or  sentence  of  the  SSFC  and  such  officer  or  the  

authority  has  to  specify  himself/itself  as  to  the  correctness,  legality  or  

propriety of the order passed or as to the regularity of any proceeding to  

which the order relates. Sub-Section (2) thereof provides that any finding  

or sentence of the SSFC, which has been confirmed, could be challenged  

by  the  aggrieved  person  before  the  Central  Government,  the  Director  

General or any prescribed officer, who is superior in command to one who  

confirms the finding and sentence, and such appellate authority like the  

Central  Government,  the Director General  or the prescribed officer may  

pass such order thereon, as it/he thinks fit.  Section 141 of the Act provides  

for the power  to make rules, under which the Central  Government may  

make rules for the purpose of carrying into effect the provisions of the Act.  

Such rules have been framed, they being  Border Security Force Rules,  

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1969.  Chapter  XI  of  the said Rules deals with the proceedings before  

SSFC.  Rule 148 runs as under:-

148. Verdict: The Court shall after the evidence for prosecution  and defence has been heard, give its opinion as to whether  

the accused is guilty or not guilty of the charge or charges.  

Rule  149  is  the  most  important  Rule,  on  which  Shri  Malhotra,  

Learned ASG has heavily relied upon. The Rule is as under:-

149. Finding:

(1) The finding on every charge upon which the accused is  

arraigned shall be recorded and except as mentioned in  

these  rules  shall  be  recorded  simply  as  a  finding  of  

“Guilty” or of “Not Guilty”.

(2) When the Court is of opinion as regards any charge that  

the facts proved do not disclose the offence charged or  

any offence of which he might under the Act legally be  

found guilty on the charge as laid, the Court shall find  

the accused “Not Guilty” of that charge.

(3) When the Court is of opinion as regards any charge that  

the facts found to be proved in evidence differ materially  

from the facts alleged in the statement of particulars in  

the charge, but are nevertheless sufficient to prove the  

offence stated in the charge, and that the difference is  

not so material as to have prejudiced the accused in his  

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defence, it may, instead of finding of “Not Guilty” record  

a special finding.

(4) The special  finding may find  the accused guilty  on a  

charge  subject  to  the  statement  of  exceptions  or  

variations specified therein.

(5) The Court shall not find the accused guilty on more than  

one of two or more charges laid in the alternative, even  

if conviction upon one charge necessarily connotes guilt  

upon the alternative charge or charges.

It is important to note at this juncture that in the same Rules, Chapter  

IX deals with the procedure for Security Force Courts.  Rule 99, which is  

included in Chapter IX, is of importance for the decision in these appeals.  

Before its amendment in the year 2003, the Rule was as under:-

99. Record and announcement of finding:-

(1) The finding on every charge upon which the accused is  

arraigned shall be recorded and except as provided in  

these  rules,  shall  be  recorded simply  as a  finding  of  

“Guilty” or of “Not Guilty”.

(2) Where the Court  is  of  opinion as regards any charge  

that the facts proved do not disclose the offence, charge  

or any offence of which he might under the Act legally  

be found guilty on the charge as laid, the Court shall  

acquit the accused of that charge.

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(3) If the Court has doubts as regards any charge whether  

the facts proved show the accused to be guilty of the  

charge as laid, it may, before recording a finding on that  

charge, refer to the confirming authority for an opinion,  

setting out the facts which it finds to be proved and may  

if necessary, adjourn for that purpose.

(4) Where the Court  is  of  opinion as regards any charge  

that  the facts which it  finds to be proved in evidence  

differ materially from the facts alleged in the statement  

of  particulars  in  the  charge  but  are  nevertheless  

sufficient to prove the offence stand in the charge, and  

that  the  difference  is  not  so  material  as  to  have  

prejudiced the accused in his defence, it may, instead of  

a finding of “Not Guilty” record a special finding.

(5) The special  finding may find  the accused guilty  on a  

charge  subject  to  the  statement  of  exceptions  or  

variations specified therein.

(6) Where  there  are  alternative  charges,  and  the  facts  

proved appear to the Court not to constitute the offence  

mentioned in any of those alternative charges, the Court  

shall record a finding of “Not Guilty” on that charge.

(7) The Court shall not find the accused guilty on more than  

one of two or more charges laid in the alternative, even  

if  conviction  upon  one  charge  necessarily  connotes  

guilty upon the alternative charge or charges.

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(8) If the Court thinks that the facts proved constitute one of  

the  offences  stated in  two or  more  of  the  alternative  

charges, but doubts which of those offences the facts  

do at law constitute, it may, before recording a finding  

on those charges, refer to the confirming authority for an  

opinion, setting out the facts which it finds to be proved  

and stating that it doubts whether those facts constitute  

in  law the offence stated in such one or other of  the  

charges  and  may,  if  necessary,  adjourn  for  that  

purpose.

(9) Not relevant.

After the amendment of Rule 99(1), the same was in the following  

form:-

99. Record and announcement of finding:-

(1) The finding on every charge upon which the accused is  

arraigned shall be recorded and except as provided in  

these  rules,  shall  be  recorded simply  as a  finding  of  

“Guilty” or of “Not Guilty”.  After recording the finding on  

each  charge,  the  Court  shall  give  brief  reasons  in  

support thereof.  The Law Officer or, if there is none, the  

Presiding Officer shall record or cause to be recorded  

such  brief  reasons  in  the  proceedings.   The  above  

record  shall  be  signed  and  dated  by  the  Presiding  

Officer and the law Officer, if any.

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Therefore, under Rule 99(1), it became necessary for the SSFC to  

give brief reasons in support of the findings, where the procedure of SSFC  

was being followed.

9. It is needless to mention that Rule 99 will not apply to SSFC.  The  

procedure for SSFC is provided in Chapter XI (Rules 133 to Rule 161),  

which alone is relevant here.  It must be noted here that though Rule 99  

was amended requiring authority of General Security Force Court or Petty  

Security Force Court to give reasons in support of their findings, no such  

amendment was made to Rule 149 which is applicable in case of SSFC.  

Shri Malhotra, Learned ASG, therefore, rightly argued that since Rule 149  

was left intact in contradistinction to Rule 99, the authorities of SSFC were  

not required to give reasons in support of their findings in all these cases  

and  the  High  Court  has  gravely  erred  in  setting  aside  the  orders  of  

authorities on that count alone.

10. Shri Malhotra, Learned ASG further argued that if the SSFC was not  

required  to  give  reasons  under  Rule  149,  then  the  appellate/revisional  

authority  under  Section  117(2),  also  need not  record  its  reasons  while  

dealing with the appeal.  Shri Malhotra further pointed out that in all the  

above matters, the SSFC only recorded findings in terms of Rule 149(1) by  

recording the verdict of guilty and the said verdict has been confirmed by  

the  appellate  authority  under  Section  117(2)  of  the  Act  in  the  similar  

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manner without  giving any reasons.  Shri  Malhotra pointed out  that the  

High Court has allowed all the Writ Petitions only on the sole ground that  

the reasons have not been given by the appellate authority or the SSFC.  

He pointed out that if the SSFC was not required to give any reasons, even  

the appellate authority under Section 117(2) of the Act was not required to  

record any reasons.  For this, Shri Malhotra relied on the decision in Som  

Datt  Datta  Vs.  Union of  India  [AIR 1969 SC 414],  which  decision  is  

followed by the Constitution Bench in the decision in S.N. Mukherjee Vs.  

Union of India [1990 (4) SCC 594].  There also, the question arose as to  

whether the court martial authorities in case of Army personnel, as also the  

appellate authorities, dealing with the proceedings, were required to give  

reasons and whether the absence of reasons would invalidate the verdict.  

In  Som Datt Datta Vs. Union of India  (cited supra),  a contention was  

raised  that  the  order  of  the  Chief  of  the  Army  Staff  confirming  the  

proceedings of the court martial under Section 164 of the Army Act, 1950  

was illegal since no reason had been given in support of the order by the  

Chief  of  the Army Staff  and that  the Central  Government  had also not  

given any reasons while dismissing the appeal of the petitioner in that case  

under Section 165 of the Army Act, 1950.  The Court took the view that  

while  Section 162 of the Army Act  expressly provided that  the Chief  of  

Army Staff may for reasons based on the merits of the case, set aside the  

proceedings or reduce the sentence to any other sentence which the Court  

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might have passed, there was no express obligation imposed by Sections  

164  and 165  of  the  Army Act  on  the  confirming  authority  or  upon the  

Central Government to give reasons in support of its decision to confirm  

the proceedings of the court martial.  In  Som Datt Datta Vs. Union of   

India (cited supra), no other Section of the Army Act or any of the Rules  

made  thereunder,  had  been  brought  to  the  Court’s  notice,  from which  

necessary implication could be drawn that such a duty to give reasons was  

cast upon the Central Government or upon the confirming authority.

11. In S.N. Mukherjee Vs. Union of India (cited supra), again more or  

the less same question came before the Constitution Bench of this Court in  

respect of the provisions under Section 164 of the Army Act, as also the  

Army Rules.  The Court held that except in cases where the requirement  

has  been  dispensed  with  expressly  or  by  necessary  implication,  an  

administrative authority exercising judicial or quasi-judicial functions must  

record the reasons for its decision.  The Court was of the view that such  

reasons, if recorded, would enable the higher Courts like Supreme Court  

and the High Courts to effectively exercise the appellate or supervisory  

power.  It also expressed that the requirement of recording reasons would  

necessarily  (i)  guarantee  consideration  by  the  authority;  (ii)  introduce  

clarity  in  the  decisions;  and  (iii)  minimize  chances  of  arbitrariness  in  

decision making.  This Court also further went on to hold that the reasons  

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need not be as elaborate, as in the decision of a Court of law and that the  

extent  and nature of  the reasons would  depend on particular  facts and  

circumstances.  What was necessary was that the reasons were clear and  

explicit so as to indicate that the authority has given due consideration to  

the points in controversy.  However, the Court further went on to hold that  

the provisions of the Army Act and Rules suggested that at the stage of  

recording  of  findings and sentence,  the  court  martial  is  not  required  to  

record its reasons.  This Court also held that the judge-advocate plays an  

important role during the course of trial at a general court martial and he is  

enjoined to  maintain an impartial  position.   This  Court  further  held that  

under the Army Rules, the court martial records its findings after the judge-

advocate has summed up the evidence and has given his opinion upon the  

legal  bearing  of  the  case  and  that  the  members  of  the  court  have  to  

express their opinion as to the findings by word of mouth on each charge  

separately and the finding on each charge is to be recorded simply as a  

finding of “guilty” or of “not guilty”.  It was held that it was only in case of  

Rule  66(1)  of  the Army Rules,  where  there was  a recommendation  for  

mercy, the reasons were required to be given. The Court further went on to  

hold in paragraph 48 that reasons are also not required to be recorded for  

an order passed by the confirming authority, confirming the findings and  

sentence recorded by the court martial.  It further went on to hold that even  

the Central Government, dismissing the post-confirmation petition, is not  

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required to record the reasons.  Ultimately in para 48, the Court observed:-

“48. For the reasons aforesaid, it must be held that reasons  are not required to be recorded for an order passed by  the  confirming  authority  confirming  the  findings  and  sentence recorded by the court martial as well as for the  order passed by the Central Government dismissing the  post-confirmation petition.  Since we have arrived at the  same  conclusion  as  in  Som  Datt  Datta  Case  the  submission of Shri Ganguli that the said decision needs  reconsideration cannot  be accepted and is,  therefore,  rejected.”

12. On this backdrop, it is clear that the provisions for the SSFC and the  

appellate authority are para materia, more particularly in case of Rule 149  

and Section 117(2) of the Act, with the provisions which were considered  

in both the above authorities.  Therefore, there cannot be any escape from  

the conclusion that as held by the Constitution Bench, the reasons would  

not  be  required  to  be  given  by  the  SSFC  under  Rule  149  or  by  the  

appellate authority under Section 117(2) of the Act.  This position is all the  

more obtained in case of SSFC, particularly, as the Legislature has chosen  

not to amend Rule 149, though it has specifically amended Rule 99 w.e.f.  

9.7.2003.   It  was  pointed out  that  inspite of  this,  some other  view was  

taken by the Delhi High Court in the decision in Nirmal Lakra Vs. Union  

of India & Ors. [2003 DLT(102) 415].  However, it  need not detain us,  

since Rule 149 did not fall for consideration in that case.  Even otherwise,  

we  would  be  bound  by law declared  by  the  Constitution  Bench in  the  

decision in S.N. Mukherjee Vs. Union of India (cited supra).

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13. As has already been stated above, the contention of Shri Malhotra,  

Learned  ASG  was  not  traversed  by  most  of  the  Learned  Counsel  

appearing  for  the  respondents  and  those  who  feebly  controverted  the  

same, could not show any decision excepting the decision in Nirmal Lakra  

Vs. Union of India & Ors. [2003 DLT(102) 415], which does not consider  

Rule  149  and  more  particularly,  the  aspect  of  its  non-amendment  in  

contradistinction with the amendment of Rule 99.

14. It  was,  however,  urged by all  the Learned Counsel  appearing on  

behalf of the respondents that since Delhi High Court has disposed of all  

the petitions only on the sole ground of the absence of reasons in support  

of the findings by SSFC and the appellate authority, the other contentions  

on merits of the Writ Petitions were not considered.  They, therefore, urged  

that  we  should  remand  back  all  these  matters.   We  had  accordingly  

remanded  the  matters.   Shri  Malhotra,  Learned  ASG  also  very  fairly  

conceded that the merits of the Writ Petitions were not considered and,  

therefore,  on that count,  it  would only be proper to remand the matters  

back  to  the  Delhi  High  Court  for  reconsideration  on  merits.   We have  

ordered accordingly.  In the result, all these appeals filed by the Union of  

India succeed.  All the matters are sent back to the Delhi High Court, which  

shall be now considered on the other contentions raised on merits.  Since  

the matters have become very old, we would request the High Court to  

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dispose of these appeals as early as possible and not beyond six months  

from the date when the records reach Delhi High Court.

………………………………..J. (V.S. Sirpurkar)

………………………………..J. (Surinder Singh Nijjar)

New Delhi; February 16, 2010

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