'Absurd extension of principle of dereliction of duty': SC restores retirement benefits of 82-year-old commandant

New Delhi, April 13 (IANS) The Supreme Court on Thursday said it would be an absurd extension of the principle of dereliction of duty if a Superintendent of Police or Commandant of a paramilitary force, is held responsible for a crime on his watch in the absence of overwhelming material establishing his guilt.

A bench of Justices Krishna Murari and Ahsanuddin Amanullah gave relief to B.S. Hari, now 82 years old, by directing payment of full retiral benefits from his superannuation till date within a period of 12 weeks.

The bench said: "This court would hasten to add that it should not be construed that the appellant, being the Commandant, had no responsibility/duty to prevent such incident, but to stretch it to the extent to label him an active partner and/or facilitator of such crime is wholly unjustified, having regard to the present factual matrix."

It further added that it would not be out of place to draw an analogy from a situation where a crime occurs under the jurisdiction of the Superintendent of Police and in the criminal proceedings emanating therefrom, some police personnel are held guilty. Thereafter, a criminal case as also departmental proceedings, based on such acts of commissions or omissions, is opened against the said Superintendent of Police, on the premise that such incident transpired under his overall watch and control, it added.

"This would be an extreme and absurd extension of the principle of dereliction of duty and/or active connivance, in the absence of overwhelming material establishing guilt, or at the very least, negating the probability of his innocence," said the bench.

The apex court set aside conviction and sentence of 10 years imposed on the BSF Commandant, a presidential medal awardee. It was alleged that in April 1995, the local police conducted a search and a few jerry cans of acetic anhydride, a controlled substance under Section 9A of the Narcotic Drugs and Psychotropic Substances Act, were stated to be located in Pakistani territory and in the fields owned by Indian civilians adjoining the border.

On April 7, 1995, the appellant was directed to hand over charge and move to the STC, where he was placed under arrest. However, search of the appellant's house did not lead to any recovery of any incriminating material. An inspector who was in actual and physical command and control of the area in the vicinity of which the alleged jerry cans were recovered, is said to have made a statement that he was involved in the incident at the behest of the appellant.

Justice Amanullah, who wrote the judgment on behalf of the bench, said: "We are quite conscious that in the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command et al are the sine qua non. That said, the doctrine of proportionality still holds the field."

The bench further added that in the absence of direct and cogent evidence against the appellant, even if the General Security Force Court (GSFC) was convinced of the appellant's guilt, the punishment handed out was too harsh, paying heed that the appellant would, even then, be a first-time delinquent, and not a habitual offender. "Arguendo, that there be some semblance of truth in the allegations, the punishment meted out, in our considered view, was disproportionate," said the bench.

The bench pointed out that except Subedar Didar Singh's statement, there was no material against the appellant. "Without other material(s) incriminating the appellant or pointing to his guilt, the statement of a single person alone ought not to have, in this instance, resulted in his conviction," it added.

"Another factor which has nudged this court to introspect vis-a-vis proportionality herein, is that the appellant has served the country for over 31 years without blame or blemish, and has received various awards, inter alia, including medal from Hon'ble President of India. The appellant's track record is otherwise unquestionable."

The bench further added that notably, it was solely on the strength of the statement of Subedar Didar Singh - who is said to have confessed to his involvement in the incident but goes on to add that it was at the behest of and upon the direction of the appellant, he was subjected to punishment.