Departmental & Criminal Proceedings Can Proceed Simultaneously; No Legal Or Statutory Bar: Jammu & Kashmir and Ladakh High Court

The petitioner approached the High Court challenging the proceedings initiated against him under Rule 173 of the BSF Rules, 1969 and an order whereby he had been placed under suspension. A further direction prohibiting the respondents from proceeding with the enquiry in terms of Rule 173(8) of the BSF Rule was also sought.

The Single Bench of Justice Sanjay Dhar held, “From the foregoing analysis of legal position on the subject, it is clear that the departmental proceedings and the proceedings in a criminal case can proceed simultaneously and there is no legal or statutory bar for proceeding with both these proceedings simultaneously. However, if departmental proceedings and criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.”

Advocate S. A. Qadri represented the Petitioner, while CGSC Vikas Malik represented the Respondent.

Factual Background

An FIR for an offence under Section 376 IPC came to be registered against the petitioner when he was posted as Assistant Commandant, STC Airport, Humhama, Srinagar. The complaint was made by a lady ASI(Min) of BSF. In the complaint, it was alleged that she had sent a message in Puri Border Security Force that any personnel working in the BSF who are interested in marriage could contact her. It was alleged that the petitioner contacted her and expressed his eagerness to marry her. The complainant alleged that the petitioner tricked her with his smooth talk and assured her that he would marry her, whereafter he had sexual relations with her continuously. It was further alleged in the complaint that the complainant came to know that the petitioner had illegal relations with one more lady and he got engaged to another girl.

After the registration of FIR against the petitioner, the investigation of the case was set into motion, and the chargesheet was filed before the competent court. The petitioner was granted bail in the said case, and the trial of the case was going on. The respondents, after examining the entire case and keeping in view the gravity of the offence, exercised their powers under Rule 40A(1) of the BSF Rules and placed the petitioner under suspension. The suspension of the petitioner was reviewed by the respondents, and it was extended four times. The final review was done, and his suspension was extended from July 12, 2025, to January 7, 2026.

Reasoning

Referring to the charges framed by the criminal court against the petitioner, the Bench noted that the same related to sexual intercourse with the lady ASI by the petitioner on the false promise of marriage. “If these allegations levelled against the petitioner are proved, the same would amount to offence of rape and it would also amount to misconduct as the person against whom the petitioner is alleged to have committed the offence of rape is also a member of the Force. Therefore, the consequences of the alleged act of the petitioner have contours of criminality as well as the contours of misconduct. Thus, the contention of the petitioner that his alleged act is a personal matter having nothing to do with his service, cannot be accepted”, it stated.

It was noticed by the Bench that the allegation of the lady ASI against the petitioner was simple that she was lured by the petitioner into sexual intercourse on the basis of a false promise of marriage. As per the Bench, the determination of the veracity of the allegation by the criminal court or during the departmental proceedings did not involve a decision of a complicated question of fact or law. The Bench was of the view that the defence of the petitioner before the criminal court was not going to be prejudiced in case the departmental proceedings were allowed to go ahead because the petitioner had already disclosed his defence not only in the petitions filed by him but also in his representations filed by him before the respondents.

The petitioner had assailed the legality and validity of the order on the ground of delay in completion of departmental proceedings against him, which had resulted in his prolonged suspension. On this aspect, the Bench noted that it was at the instance of the petitioner that the departmental proceedings came to a grinding halt. “Thus, the petitioner cannot take advantage of his own actions by claiming that the respondents have perpetuated his agony by not completing the departmental proceedings. The ground urged by the petitioner is without any substance and, therefore, deserves to be rejected”, the Bench held.

Thus, in light of such facts and circumstances, the Bench dismissed the Petition.

Cause Title: Akhand Prakash Shahi v. Union of India (Case No.: WP(C) No.1876/2025)

Appearance

Petitioner: Advocate S. A. Qadri

Respondent: CGSC Vikas Malik, Advocate Sehar Mufti Ahad

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