SC Upholds DHC Verdict Restoring Service Of BSF Constable Accused Of Taking Pics Of Female Doctor

The Supreme Court has recently upheld a verdict of Delhi High Court that revoked the dismissal of a Border Security Force constable, accused of clicking pictures of a woman doctor while she was taking a bath.

A bench comprising of Justices JB Pardiwala and Manoj Misra dismissed the appeals filed by the Centre and the BSF administration challenging the February 2013 verdict of the high court which directed that he would be entitled to certain consequential benefits.

The appellants also challenged the November 2013 order of the high court in the top court which dismissed the plea seeking a review of the February 2013 verdict.

The bench stated in its verdict delivered on Tuesday, “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.”

It stated that the high court was also justified in not re-opening of the proceeding from the stage where the “error crept in” by noticing that it would serve no useful purpose as there was hardly any evidence on record and nearly a decade that passed since the date of the alleged incident.

The bench stated, “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.”

Furthermore, it noted that the man was a constable (General Duty) in the BSF and the case against him was that while he was posted as a security aide to a lady doctor, he clicked her pictures while she was taking a bath in June 2005.
The top court noted the allegations that against him on the day of the alleged incident, the doctor requested him to leave her quarter as she were to take a bath and while she was bathing, she noticed two camera flashes through the window of her bathroom after which she raised an alarm.

Therefore, the bench noted that the matter was reported to the chief medical officer after which the BSF authorities investigated it and put the constable under open arrest.

Thereafter, under the orders of the Battalion Commandant, proceedings were initiated against him in respect of the commission of an offence under section 40 of the Border Security Force Act, 1968, for committing an act prejudicial to the good order and discipline of the force and record of evidence that was prepared.

The apex court noted that on completion of the record of evidence, the Commandant remanded the constable for trial by a Summary Security Force Court, which held its proceedings in July 2005 where the constable is stated to have pleaded guilty”.

Based on that, the SSFC dismissed him from service, the bench said, adding that aggrieved by this, he had filed an appeal before the ‘appellate authority’.

Moreover, the court noted that in the appeal, he refuted the allegations of clicking pictures of the lady doctor and claimed that no evidence was forthcoming against him in the testimony of prosecution witnesses.

The bench noted, “Taking all the aforesaid circumstances as well as the plea that no confession was made by the original petitioner into consideration, the high court opined that there was no worthwhile evidence against the original petitioner as to weigh on him to admit his guilt.”

It stated, “Admittedly, none had seen him clicking photographs and the lady doctor also did not inculpate the original petitioner though she might have suspected the original petitioner.”