SC upholds HC verdict restoring service of BSF constable accused of taking female doctor's pictures

The Supreme Court has upheld a Delhi High Court verdict that had 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 of Justices J B 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 had also directed that he would be entitled to certain consequential benefits.

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

"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," the bench said in its verdict delivered on Tuesday.

It said the high court was also justified in not re-opening 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 had passed since the date of the alleged incident.

"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 said.

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 apex court noted the allegations against him were that on the day of the alleged incident, the doctor had 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.

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

Thereafter, under the orders of the Battalion Commandant, proceedings were initiated against him in respect of 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 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 (SSFC), which held its proceedings in July 2005 wherein 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.

The apex 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.

"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," the bench noted.

"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," it said.