SP or Commandant can't be liable for every crime in territory under his watch and control: SC [Read Judgment]

NEW DELHI: The Supreme Court on Thursday held that a Superintendent of Police or Commandant of a security force cannot be held liable for a crime or omission or commission in territory of his overall watch and control unless there is overwhelming materials establishing his guilt.

It would be "an extreme and absurd extension of the principle of dereliction of duty", if the top officer is treated responsible in such cases, a bench of Justices Krishna Murari and Ahsanuddin Amanullah said.

The court set aside conviction and sentence of 10 years imposed on BSF commandant, B S Hari, a Presidential medal awardee, for recovery of a few Jerrycans of Acetic Anhydride, a controlled substance under the Narcotic Drugs and Psychotropic Substances Act from Pakistani territory in fields owned by Indian civilians on Ferozepur border in Punjab.

The court directed payment of full retiral benefits to Hari, now 82-year-old, from his superannuation on August 31, 1995 till date within a period of 12 weeks.

It found that the punishment meted out to him was "too harsh", and "wholly unjustified and disproportionate" as there was no direct evidence of his involvement in the case.

"Even if the GSFC was convinced of the appellants 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," the bench said.

The top court allowed an appeal filed by Hari against the Punjab and Haryana High Court judgement of February 19, 2010 which had dismissed his criminal writ petition.

In its judgement, Justice Amanullah on behalf of the bench wrote, "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 court noted, the search of the appellants house on after the incident in 1995, did not result in recovery of any incriminating documents or articles, which would obviously come to his benefit.

It also pointed out except one Subedar Didar Singhs 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," the bench said.

The court also pointed out that the appellant has served the country for over 31 years without blame or blemish, and has received various awards,  including medal from the President of India. The appellants track record is otherwise unquestionable, it added.

"In the present instance, the subordinate personnel have been adjudged guilty, indicating their active involvement. Being the persons on the spot, it was their primary responsibility to ensure that no crimes/offences/questionable incidents took place on their watch," the bench said.

The court, however, added that it should not be construed that the appellant, being the Commandant, had no responsibility or duty to prevent such incident, but to stretch it to the extent to label him an active partner or facilitator of such crime is wholly unjustified.

"Notably, 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," it added.

In the case, the bench also noted one accused Lakhwinder Singh was discharged by the trial court in the absence of any evidence. The other accused Surjit Singh alias Pahalwan was given relief by the High Court by quashing the FIR against him on the ground that he was lodged in Central Jail, Amritsar on the said date.

"Illustratively, 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, and 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. 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," the bench said.

[Read Judgment]