The Delhi High Court has set aside the dismissal of a Border Security Force (BSF) constable, ruling that the failure to produce and examine available CCTV footage during the General Security Force Court (GSFC) proceedings amounted to a denial of a fair trial.
In a judgment pronounced on December 4, 2025, a Division Bench comprising Justice C. Hari Shankar and Justice Om Prakash Shukla allowed the writ petition filed by Shantanu Saha, quashing the orders of the GSFC and the appellate authorities. The Court directed the reinstatement of the petitioner with all consequential benefits, excluding back wages for the intervening period.
The core legal issue before the Court was whether the conviction and sentence imposed by the GSFC, without examining the primary evidence of CCTV footage despite its availability and the petitioner’s requests, constituted a violation of the right to a fair trial. The Bench held that the “failure to produce and examine the best and primary evidence of CCTV footage” deprived the petitioner of an effective opportunity to defend himself, thereby warranting judicial interference under Article 226 of the Constitution of India.
Background of the Case
The petitioner, Shantanu Saha, was recruited into the BSF on April 3, 1990. He was posted in the 27th Battalion, BSF, Kolkata. The prosecution alleged that on January 21, 2021, and February 14, 2021, the petitioner engaged in misconduct towards a female constable (referred to as Ms. X), including touching her inappropriately and offering her an unwarranted gift. It was further alleged that he made indecent remarks about her in April 2021.
Ms. X submitted a written complaint on June 18, 2021. An Internal Complaints Committee (ICC) investigated the matter and recommended disciplinary action. Subsequently, a Record of Evidence (ROE) was convened, and a charge sheet was framed under Section 46 of the BSF Act, 1968, for “using criminal force to a woman intending to outrage her modesty.”
The initial GSFC proceedings, held in November 2022, found the petitioner “not guilty,” noting contradictions in the complainant’s statement regarding the place and timing of the duty and a lack of corroborative evidence. However, the Confirming Authority, exercising powers under Section 113 of the BSF Act, directed the GSFC to convene additional proceedings to record further evidence.
Upon reconvening in March 2023, the GSFC reversed its earlier finding, holding the petitioner guilty based on additional witnesses and documents. He was sentenced to one year of simple imprisonment and dismissed from service. His subsequent pre-confirmation and post-confirmation appeals were dismissed by the competent authorities.
Arguments of the Parties
The Petitioner’s Submissions: Advocate Arjun Panwar, appearing for the petitioner, argued that the findings were unsustainable as the petitioner had 33 years of unblemished service. He contended that the allegations rested solely on a “belated and uncorroborated statement” of the complainant, with a delay of nearly five months in filing the written complaint.
The counsel emphasized that “no CCTV footage was retained or produced despite the admitted availability of cameras at the relevant gate.” He submitted that the petitioner had expressly requested the CCTV footage during the trial, but it was not provided. It was further argued that the initial GSFC had acquitted the petitioner due to material contradictions, and the reversal was based on an arms in-out register without supporting duty-deployment documents.
The Respondents’ Submissions: Ms. Shubhra Parashar, Counsel for the Union of India, submitted that the petitioner “had the opportunity to call for CCTV Cameras from the authority in his defence but failed to do so.” She argued that the Confirming Authority rightly remanded the case for revision. It was contended that the additional evidence, including the arms in-out register and testimony of witnesses (PW2 and PW5), corroborated the complainant’s presence at the location and the allegations leveled against the petitioner.
Court’s Analysis
The High Court first delineated the scope of judicial review over GSFC trials, noting that while it cannot sit as an appellate authority to re-appreciate evidence, it can interfere in cases of “violation of principles of natural justice or denial of fair trial.”
On Non-Production of CCTV Footage: The Court observed that the alleged incident reportedly occurred inside Gate No. 2, which was under CCTV coverage. The Bench noted that there were no eyewitnesses. In such circumstances, the Court stated, “the weightage of a CCTV footage gains significance as it being corresponding electronic record, becomes the best and primary evidence of the occurrence.”
The Judges rejected the respondents’ plea that the onus was on the petitioner to produce the footage. The judgment cited Section 89(1) of the BSF Act and Rule 108 of the BSF Rules, which empower the court to summon documents and mandate the Presiding Officer to ensure a fair trial. The Court held:
“Since, the concerned authority is empowered and was required to the aforementioned extent by statute, the onus to summon and call for CCTV footage cannot be shifted to petitioner, who in his due diligence requested for the same twice. In any case it is the respondent, who are custodian of the said CCTV footages.”
The Court invoked Section 114, illustration (g) of the Indian Evidence Act, observing that an adverse inference could be drawn for withholding such evidence.
On Procedural Irregularity: The Court found that the GSFC convicted the petitioner based on witness statements and registers without considering the “significance of primary evidence in the absence of no direct evidence.” It termed the shifting of the burden to the petitioner as “absurd and inconsistent” with the statutory provisions.
The Bench also noted that a video recording relied upon by the ICC in its additional findings was “neither produced before the GSFC,” which gave rise to “another serious procedural irregularity.”
Decision
The High Court concluded that the proceedings did not afford the petitioner a fair opportunity to defend himself. The Court held:
“The failure to produce and examine the best and primary evidence of CCTV footage, despite its availability, relevance and the petitioner’s repeated requests, led to an unfair trial since the petitioner was not afforded an effective and real opportunity to defend himself.”
The Bench declared that the denial of the CCTV footage constituted a “procedural irregularity” that was against the “principles of fair play.”
Consequently, the Court allowed the writ petition and directed that the petitioner be “reinstated to the post from which he was dismissed with all the consequential benefits.” However, the Court clarified that the reinstatement shall be “without any back wages or benefits accrued during intervening period.”
