NDLI: Union of India and Ors. Vs. Mudrika Singh

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Border Security Force Act 1968 – s.24(a)
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Army Act, 1950 (46 of 1950) Border Security Force Act, 1968 (47 of 1968)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Disposed Off
Headnote	Border Security Force Act, 1968 – s.24(a) – BSF Rules 1969 – Unamended r.51 and amended r.51 (amendment 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 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 (amendment 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. Interpretation of Statutes – Amendment to a statute – Clarificatory nature – Held: An amendment to a statute or to statutory rules may often be clarificatory in nature – It is clarificatory in the sense that it expressly recognizes a power that already vests in the authority – In those circumstances, when an amendment is purely clarificatory or declaratory in nature, it is deemed to operate retrospectively. Service Law – Highlighting a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules – Discussed
Judge	Hon'ble Dr. Justice D.Y. Chandrachud
Neutral Citation	2021 INSC 817
Petitioner	Union Of India And Ors.
Respondent	Mudrika Singh
SCR	[2021] 11 S.C.R. 1106
Judgement Date	2021-12-03
Case Number	6859

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