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Section 47 of the BSF Act- the case squarely falls within 1st exception to the general provisions of Section 47 of the BSF Act, for which option is available to the applicant either to try them at BSF Court or let the Criminal Court of Ordinary jurisdiction to go ahead with their trial. In the instant case applicant has chosen to try them at BSF Court. Therefore, this court has no option but to hand-over the accused together with the charge-sheet and other material collected by Investigating agency to the applicant for trying them at the BSF Court, Application is therefore accepted and accused are ordered to be handed over under custody so the applicant together with charge-sheet and the supporting material as well as all the seized articles. The Officer concerned shall try the accused expeditiously and convey the final out-come of the case to this court as soon as it is completed” In the facts and circumstances of the case, we give liberty to the Director General of the Force, if so advised, to re-visit the entire issue within eight weeks bearing in mind the observation aforesaid in accordance with law and if he comes to the conclusion that the trial deserves to be conducted by the Security Force Court, nothing will prevent him to make an appropriate application afresh before the Chief Judicial Magistrate. Needless to state that in case the Director General of the Force takes recourse to the aforesaid liberty and files application for the trial by the Security Force Court, the Chief Judicial Magistrate shall consider the same in accordance with law. It is made clear that observations made in these appeals are for the purpose of their disposal and shall have no bearing on trial. In the result, both the appeals are allowed, the impugned judgment and order of the Chief Judicial Magistrate dated 25th of November, 2010 and that of the High Court dated 21st October, 2011 are set aside. The Security Force Court shall forthwith transmit the record sent to it, to the Chief Judicial Magistrate, Srinagar, who in turn shall proceed in the matter in accordance with law bearing in mind the observation aforesaid.

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English: Indian Border security force. BSF India.

English: Indian Border security force. BSF India. (Photo credit: Wikipedia)

 

 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 624 OF 2013
(@SPECIAL LEAVE PETITION (CRL.) NO. 5910 OF 2012)
STATE OF J & K … APPELLANT
VERSUS
LAKHWINDER KUMAR & ORS. …RESPONDENTS
WITH
CRIMINAL APPEAL NO. 625 OF 2013
(@SPECIAL LEAVE PETITION (CRL.) NO. 5911 OF 2012)
GHULAM MOHAMMAD SHEIKH … APPELLANT
VERSUS
STATE OF J & K & ORS. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
The allegation in the case is very distressing. A
Kashmiri teenager lost his life by the bullet of
Lakhwinder Kumar, a constable of the Border Security
Force (hereinafter referred to as “the Force”) at the
Boulevard Road, Srinagar. He allegedly fired at thePage 2
instigation of R.K. Birdi, Commandant of the 68th
Battalion of the Force. The cause of firing, as
alleged by the prosecution, if true, is appalling.
R.K. Birdi on 5th of February, 2010 had gone for
Annual Medical Examination at Composite Hospital,
Humhama. While on way back at 4.40 P.M. to the Force
Headquarters at Nishat, Srinagar, accompanied by
other Force personnel, they got stuck in a traffic
jam. This led to a verbal duel with some boys
present at Boulevard Road, Brain, Srinagar. The
verbal duel took an ugly turn and the Force personnel
started chasing the boys. It is alleged that at the
instigation of R.K. Birdi, constable Lakhwinder Kumar
fired twice and one of the rounds hit Zahid Farooq
Sheikh. Zahid died of the fire arm injury
instantaneously. The aforesaid incident led to
registration of FIR No. 4 of 2010 at Police Station,
Nishat. It is relevant here to state that the
Commandant of the Force by his letter dated
10.02.2010 handed over the investigation to the
police. The case was investigated without any murmur
by the local police and, during the course of
2Page 3
investigation, both R.K.Birdi and Lakhwinder Kumar
were arrested. On completion of investigation, the
police submitted the charge-sheet on 05th of April,
2010 against both the accused for commission of
offence under Section 302, 109 and 201 of the Ranbir
Penal Code before the Chief Judicial Magistrate,
Srinagar, whereupon an application was filed on
behalf of the Force seeking time to exercise option
for trial of the accused by Security Force Court.
Accordingly, an application was filed by the Deputy
Inspector General, Station Headquarters, Border
Security Force, Srinagar before the Chief Judicial
Magistrate, Srinagar on 6th of April, 2010 inter alia
stating that the criminal case is pending against
R.K. Birdi, Commandant and Lakhwinder Kumar,
Constable and they are serving under his Command and
both of them are in judicial custody. He went on to
say that in exercise of his discretion under Section
80 of the Border Security Force Act, 1968
(hereinafter referred to as “the Act”) he has decided
to institute proceeding against them before the
Security Force Court. In the aforesaid premise it
3Page 4
was requested to stay the proceeding and to forward
the accused persons along with all connected
documents and exhibits for trial before the Security
Force Court. This application was filed in the light
of the provisions of Section 549 of the Code of
Criminal Procedure, Svt. 1989, as in force in the
State of Jammu & Kashmir. It was further stated that
the outcome of the trial of the accused shall be
intimated to the court as required under Rule 7 of
the Jammu & Kashmir Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1983. The prayer
of the Force was opposed by the State of Jammu &
Kashmir and the deceased’s uncle Ghulam Mohammad
Shiekh. The Chief Judicial Magistrate by his order
dated 25th of November, 2010 allowed the application
filed by the Commandant and handed over the accused
together with the charge-sheet and other materials
collected by the investigating agency for trying the
accused by the Security Force Court. While doing
so, the learned Chief Judicial Magistrate observed as
follows:
“In the light of the above discussion it
has been shown that accused have committed
4Page 5
alleged offence while on active duty and
the case squarely falls within 1st
exception to the general provisions of
Section 47 of the BSF Act, for which option
is available to the applicant either to try
them at BSF Court or let the Criminal Court
of Ordinary jurisdiction to go ahead with
their trial. In the instant case applicant
has chosen to try them at BSF Court.
Therefore, this court has no option but to
hand-over the accused together with the
charge-sheet and other material collected
by Investigating agency to the applicant
for trying them at the BSF Court,
Application is therefore accepted and
accused are ordered to be handed over under
custody so the applicant together with
charge-sheet and the supporting material as
well as all the seized articles. The
Officer concerned shall try the accused
expeditiously and convey the final out-come
of the case to this court as soon as it is
completed”
Aggrieved by the aforesaid order Ghulam Mohammad
Sheikh and the State of Jammu & Kashmir filed
separate revision applications before the High Court.
Both the applications were heard together by the High
Court and have been dismissed by the impugned order
dated 21st of October, 2011. It is against this order
the State of Jammu & Kashmir and Ghulam Mohammad
Sheikh have preferred separate special leave
petitions under Article 136 of the Constitution of
India.
5Page 6
Leave granted.
We have heard Mr. Gaurav Pachnanda, Senior
Advocate on behalf of the appellant, the State of
Jammu & Kashmir and Ms. Kamini Jaiswal, Advocate for
the appellant, Ghulam Mohammad Sheikh. We have also
heard Mr. R.F. Nariman, learned Solicitor-General of
India. Despite service of notice, Respondent Nos. 1
and 2 i.e., Lakhwinder Kumar & R.K. Birdi
respectively have not chosen to appear.
It may be mentioned here that Section 47 of the
Act bars trial of a person subject to the Act by a
Security Force Court who has committed an offence of
murder or of culpable homicide not amounting to
murder or rape in relation to a person not subject to
the Act. However, this bar will not operate if the
person subject to the Act has committed the offence
while on active duty. In other words, if a member of
the Force commits offence of the nature specified
above and the victim of crime is a civilian member,
he cannot be tried by a Security Force Court but this
bar will not operate if the offence has been
committed while on active duty. The expression
6Page 7
‘active duty’ has been defined under Section 2(1)(a)
of the Act, it reads as follows:
“2. Definitions.-(1) In this Act, unless the
context otherwise requires,-
(a)”active duty”, in relation to a person
subject to this Act, means any duty as a
member of the Force during the period in
which such person is attached to, or
forms part of, a unit of the Force-
(i) which is engaged in operations
against an enemy, or
(ii) which is operating at a picket or
engaged on patrol or other guard duty
along the borders of India,
and includes duty by such person
during any period declared by the
Central Government by notification in
the Official Gazette as a period of
active duty with reference to any area
in which any person or class of
persons subject to this Act may be
serving;”
Aforesaid provision makes the duty of the nature
specified therein to be active duty and includes duty
declared by the Central Government by notification in
the official Gazette. From a plain reading of the
aforesaid, it is evident that any duty as a member of
the Force and enumerated in clauses (i) and (ii),
i.e., engaged in operations against an enemy or
7Page 8
operating at a picket or engaged on patrol or other
guard duty along the borders of India shall come
within the definition of active duty. It shall also
include such duty by the member of the Force as
active duty declared by the Central Government in the
Official Gazette.
The Central Government by Notification SO.1473(E)
dated 8th of August, 2007 in exercise of the powers
conferred under Section 2(1)(a) of the Act, had made
a declaration that the duty of every personnel
serving in the State as mentioned in the said
Notification for the period 01st of July 2007 to 30th
of June, 2010, shall be ‘active duty’. The State of
Jammu & Kashmir is at Serial Number 16 of the said
Notification.
It is common ground that offence committed is a
civil offence which is triable by a Criminal Court
and at the time of commission of the offence, the
accused persons were not engaged in any operation
against any enemy or operating at a picket or engaged
on patrolling or other guard duty along the borders
8Page 9
of India. According to the appellants, accused
persons were not engaged in the duty of the nature
specified above pursuant to any lawful command,
therefore, they cannot be said to be on active duty
so as to give jurisdiction to the Force to try them
before Security Force Court. The learned Solicitor
General does not join issue and accepts that accused
persons were not performing duty of the nature
mentioned in clauses (i) and (ii) of Section 2(1)(a)
of the Act, but, according to him, in view of
declaration of the Central Government, their act
shall come within the inclusive definition of
active duty.
There is no connection, not even the remotest
one, between their duty as members of the Force and
the crime in question. The situs of the crime was
neither under Force control nor the victim of crime
was in any way connected with the Force. But, for
the notification, these could have been sufficient to
answer that accused persons were not on active duty
at the time of commission of the crime. However,
9Page 10
answer to this question would depend upon the effect
of notification issued in exercise of the power under
Section 2(1)(a) of the Act. From a plain reading of
this section it is evident that ‘active duty’ would
include duty of such person during any period
declared by the Central Government by notification in
the Official Gazette as a period of active duty.
Section 2(1)(a) finds place in the definition section
of the Act.
It is well settled that legislature has authority
to define a word even artificially and while doing
so, it may either be restrictive of its ordinary
meaning or it may be extensive of the same. When the
legislature uses the expression “means” in the
definition clause, the definition is prima facie
restrictive and exhaustive. However, use of the
expression “includes” in the definition clause makes
it extensive. Many a times, as in the present case,
the legislature has used the term “means” and
“includes” both and, hence, definition of the
expression “active duty” is presumed to be
10Page 11
exhaustive. In our opinion, the use of the
expression “includes” enlarges the meaning of the
word “active duty” and, therefore, it shall not only
mean the duty specified in the section but those duty
also as declared by the Central Government in the
Official Gazette. The notification so issued by the
Central Government states that “duty of every person”
of the Force “serving in the State” of Jammu and
Kashmir “with effect from the 1st of July, 2007 to 30th
of June, 2010 as active duty”. The notification does
not make any reference to the nature of duty, but
lays emphasis at the place where the members of the
Force are serving, to come within the definition of
‘active duty’. In view of the aforesaid, there is no
escape from the conclusion that the accused persons
were on active duty at the time of commission of the
offence.
The natural corollary of what we have found above
is that the bar of trial by the Security Force Court
provided in Section 47 of the Act would not operate.
11Page 12
Section 47 of the Act which is relevant for the
purpose reads as follows:
“47. Civil offences not triable by a
Security Force Court.- A person subject to
this Act who commits an offence of murder
or of culpable homicide not amounting to
murder against, or of rape in relation
to, a person not subject to this Act shall
not be deemed to be guilty of an offence
against this Act and shall not be tried by
a Security Force Court, unless he commits
any of the said offences,-
(a) while on active duty; or
(b) at any place outside India; or
(c) at any place specified by the Central
Government by notification in
this behalf.”
The aforesaid provision makes it clear that a
member of the Force accused of an offence of murder
or culpable homicide not amounting to murder or rape
shall not be tried by a Security Force Court, unless
the offence has been committed while on active duty.
As we have found that the accused persons have
committed the offence while on active duty within the
extended meaning, the bar under Section 47 of the Act
shall not stand in their way for trial by a Security
Force Court. The bar of trial by a Security Force
12Page 13
Court though is lifted, but it does not mean that the
accused who had committed the offence of the nature
indicated in Section 47 of the Act shall necessarily
have to be tried by a Security Force Court. In a
given case, there may not be a bar of trial by a
Security Force Court, but still an accused can be
tried by a Criminal Court. In other words, in such a
situation, the choice of trial is between the
Criminal Court and the Security Force Court. This
situation is visualized under Section 80 of the Act,
which reads as follows:
“80.Choice between criminal court and
Security Force Court.- When a criminal
court and a Security Force Court have each
jurisdiction in respect of an offence, it
shall be in the discretion of the
Director-General, or the InspectorGeneral or the Deputy Inspector-General
within whose command the accused person is
serving or such other officer as may be
prescribed, to decide before which court
the proceedings shall be instituted, and,
if that officer decides that they shall be
instituted before a Security Force Court,
to direct that the accused person shall be
detained in Force custody.”
As we have observed above, in the present case,
the Criminal Court and the Security Force Court each
13Page 14
have jurisdiction for trial of the offence which the
accused persons are alleged to have committed. In
such a contingency Section 80 of the Act has
conferred discretion on the Director General or the
Inspector General or the Deputy Inspector General of
the Force within whose Command the accused person is
serving, to decide before which court the proceeding
shall be instituted. Section 141 of the Act confers
power on the Central Government to make rules for the
purpose of carrying into effect the provisions of the
Act. It is relevant here to state that the Central
Government in exercise of the powers under Section
141 (1) and (2) of the Act has made the Border
Security Force Rules, 1969, hereinafter referred to
as “the Rules”. Chapter VI of the Rules is in
relation to choice of jurisdiction between Security
Force Court and criminal court. Thus, for exercise
of discretion under Section 80 of the Act, Rules have
been framed and Rule 41 of the Rules, which is
relevant for the purpose, reads as follows:
“41. Trial of cases either by Security
Force Court or criminal court.- (1) Where
an offence is triable both by a criminal
14Page 15
court and a Security Force Court, an
officer referred to in section 80 may,-
(i) (a) where the offence is committed by
the accused in the course of the
performance of his duty as a member
of the Force, or
(b) where the offence is committed in
relation to property belonging to the
Government or the Force or a person
subject to the Act, or
(c) where the offence is committed
against a person subject to the Act,
direct that any person subject to the
Act, who is alleged to have committed
such an offence, be tried by a Court;
and
(ii) in any other case, decide whether or
not it would be necessary in the
interests of discipline to claim for
trial by a Court any person subject
to the Act who is alleged to have
committed such an offence.
(2) In taking a decision to claim an
offender for trial by a Court, an
officer referred to in section 80 may
take into account all or any of the
following factors, namely:-
(a) the offender is on active duty or
has been warned for active duty and
it is felt that he is trying to avoid
such duty;
(b) the offender is a young person
undergoing training and the offence
is not a serious one and the trial of
the offender by a criminal court
would materially affect his training.
15Page 16
(c) the offender can, in view of the
nature of the case, be dealt with
summarily under the Act.”
Rule 2 (c) of the Rules defines Court to mean the
Security Force Court. A bare reading of Rule 41(1)
makes it evident that where the offence is committed
in the course of the performance of duty as a member
of the Force or where the offence is committed in
relation to property belonging to the Government or
the Force or a person subject to the Act or where the
offence is committed against a person subject to the
Act, the officer competent to exercise the power
under Section 80 of the Act may direct that the
members of the Force who have committed the offence,
be tried by a Security Force Court. The allegations
in the present case do not indicate that the accused
committed the offence in course of performance of
their duty as a member of the Force or in relation to
property belonging to the Government or the Force or
a person subject to the Act or the offence was
committed against a person subject to the Act. In
16Page 17
that view of the matter, the aforesaid ingredients
are not satisfied and, therefore, the jurisdictional
fact necessary for trial of the accused persons by a
Security Force Court does not exist. Rule 41 (1)(ii)
further authorizes the officer competent to exercise
its power under Section 80 of the Act to decide as to
whether or not it would be necessary in the interest
of discipline to claim for trial by a Security Force
Court. It is worth mentioning here that Rule 41 (2)
enumerates the factors which the officer competent
under Section 80 of the Act is to take into account
for taking a decision for trial of an accused by a
Security Force Court. None of the clauses of Rule
41(1)(i) and 41(2) apply in the facts of the present
case. The condition under which the authority could
exercise the discretion is provided under Rule 41(1)
(ii) of the Rules.
We must answer here an ancillary submission. It
is pointed out that the Rules made to give effect to
the provisions of the Act has to be consistent with
it and if a rule goes beyond what the Act
17Page 18
contemplates or is in conflict thereof, the rule must
yield to the Act. It is emphasized that Section 80 of
the Act confers discretion on the Officer within
whose Command the accused person is serving the
choice between Criminal Court and Security Force
Court without any rider, whereas Rule 41 of the Rules
specifies grounds for exercise of discretion.
Accordingly, it is submitted that this rule must
yield to Section 80 of the Act. We do not find any
substance in this submission.
One of the most common mode adopted by the
legislature conferring rule making power is first to
provide in general terms i.e., for carrying into
effect the provisions of the Act, and then to say
that in particular, and without prejudice to the
generality of the foregoing power, rules may provide
for number of enumerated matters. Section 141 of the
Act, with which we are concerned in the present
appeal, confers on the Central Government the power
to make rules is of such a nature. It reads as
follows:
18Page 19
“141. Power to make rules.-(1) The Central
Government may, by notification, make
rules for the purpose of carrying into
effect the provisions of this Act.
(2) In particular and without prejudice to
the generality of the foregoing power,
such rules may provide for,-
(a) the constitution, governance,
command and discipline of the Force;
(b) the enrolment of persons to the
Force and the recruitment of other
members of the Force;
(c) the conditions of service
including deductions from pay and
allowances of members of the Force;
(d) the rank, precedence, powers of
command and authority of the
officers, subordinate officers,
under- officers and other persons
subject to this Act;
(e) the removal, retirement, release
or discharge from the service of
persons subject to this Act;
(f) the purposes and other matters
required to be prescribed under
section 13;
(g) the convening, constitution,
adjournment, dissolution and sittings
of Security Force Courts, the
procedure to be observed in trials by
such courts, the persons by whom an
accused may be defended in such
19Page 20
trials and the appearance of such
persons thereat;
(h) the confirmation, revision and
annulment of, and petitions against,
the findings and sentences of
Security Force Courts;
(i) the forms of orders to be made
under the provisions of this Act
relating to Security Force Courts and
the awards and infliction of death,
imprisonment and detention;
(j) the carrying into effect of
sentences of Security Force Courts;
(k) any matter necessary for the
purpose of carrying this Act into
execution, as far as it relates to
the investigation, arrest, custody,
trial and punishment of offences
triable or punishable under this Act;
(l) the ceremonials to be observed
and marks of respect to be paid in
the Force;
(m) the convening of, the
constitution, procedure and practice
of, Courts of inquiry, the summoning
of witnesses before them and the
administration of oaths by such
Courts;
(n) the recruitment and conditions of
service of the Chief Law Officer and
the Law Officers;
(o) any other matter which is to be,
or may be prescribed or in respect of
which this Act makes no provision or
makes insufficient provision and
provision is, in the opinion of the
20Page 21
Central Government, necessary for the
proper implementation of this Act.
(3) Every rule made under this Act shall
be laid, as soon as may be after it is
made, before each House of Parliament
while it is in session for a total period
of thirty days which may be comprised in
one session or in two more successive
sessions, and if, before the expiry of the
session immediately following the session
or the successive sessions aforesaid both
Houses agree in making any modification in
the rule or both Houses agree that the
rule should not be made, the rule shall
thereafter have effect only in such
modified form or be of no effect, as the
case may be; so, however, that any such
modification or annulment shall be without
prejudice to the validity of anything
previously done under that rule.”
In our opinion, when the power is conferred in
general and thereafter in respect of enumerated
matters, as in the present case, the
particularlisation in respect of specified subject is
construed as merely illustrative and does not limit
the scope of general power. Reference in this
connection can be made to a decision of this Court in
the case of Rohtak & Hissar Districts Electric Supply
Co. Ltd. v. State of U.P., AIR 1966 SC 1471, in which
it has been held as follows:
21Page 22
“……….Section 15(1) confers wide powers on
the appropriate Government to make rules
to carry out the purposes of the Act; and
Section 15(2) specifies some of the
matters enumerated by clauses (a) to (e),
in respect of which rules may be framed.
It is well-settled that the enumeration of
the particular matters by sub-section (2)
will not control or limit the width of the
powers conferred on the appropriate
Government by sub-section (1) of Section
15; and so, if it appears that the item
added by the appropriate Government has
relation to conditions of employment, its
addition cannot be challenged as being
invalid in law……..”
(Underlining ours)
The Privy Council applied this principle in the
case of Emperor v. Sibnath Banerji, AIR 1945 PC 156,
to uphold the validity of Rule 26 of the Defence of
India Rules, which though was found in excess of the
express power conferred under enumerated provision,
but covered under general power. Relevant portion of
the judgment reads as under:
“Their Lordships are unable to agree
with the learned Chief Justice of the
Federal Court on his statement of the
relative positions of sub-sections (1) and
(2) of Section 2, Defence of India Act,
and counsel for the respondents in the
present appeal was unable to support that
22Page 23
statement, or to maintain that R.26 was
invalid. In the opinion of their
Lordships, the function of sub-section (2)
is merely an illustrative one; the rulemaking power is conferred by sub-section
(1), and “the rules” which are referred to
in the opening sentence of sub-section (2)
are the rules which are authorized by, and
made under, sub-section (1); the
provisions of sub-section (2) are not
restrictive of sub-section (1), as indeed
is expressly stated by the words “without
prejudice to the generality of the powers
conferred by sub-section (1).” There can
be no doubt – as the learned Judge himself
appears to have thought – that the general
language of sub-section (1) amply
justifies the terms of R.26, and avoids
any of the criticisms which the learned
Judge expressed in relation to sub-section
(2).
Their Lordships are therefore of
opinion that Keshav Talpade v. Emperor,
I.L.R. (1944) Bom. 183, was wrongly
decided by the Federal Court, and that
R.26 was made in conformity with the
powers conferred by sub-section (1) of
Section 2, Defence of India Act………”
A constitution Bench of this Court in the case of
Afzal Ullah v. State of Uttar Pradesh, AIR 1964 SC
264, quoted with approval the law laid down by the
Privy Council in the case of Sibnath Banerji (supra)
and held that enumerated provisions do not control
23Page 24
the general terms as particularization of topics is
illustrative in nature. It reads as follows:
“13. Even if the said clauses did not
justify the impugned bye-law, there can be
little doubt that the said bye-laws would
be justified by the general power
conferred on the Boards by Section 298(1).
It is now well-settled that the specific
provisions such as are contained in the
several clauses of Section 298(2) are
merely illustrative and they cannot be
read as restrictive of the generality of
powers prescribed by Section 298(1), vide
Emperor v. Sibnath Banerji, AIR 1945 PC
156. If the powers specified by Section
298(1) are very wide and they take in
within their scope bye-laws like the ones
with which we are concerned in the present
appeal, it cannot be said that the powers
enumerated under Section 298(2) control
the general words used by Section 298(1).
These latter clauses merely illustrate and
do not exhaust all the powers conferred on
the Board, so that any cases not falling
within the powers specified by Section
298(2) may well be protected by Section
298(1), provided, of course, the impugned
bye-law can be justified by-reference to
the requirements of Section 298(1). There
can be no doubt that the impugned bye-laws
in regard to the markets framed by
Respondent No. 2 are for the furtherance
of municipal administration under the Act,
and so, would attract the provisions of
Section 298(1). Therefore, we are
satisfied that the High Court was right in
coming to the conclusion that the impugned
bye-laws are valid.”
24Page 25
In view of what we have observed above it is
evident that Rule 41 of the Rules has been made to
give effect to the provisions of the Act. In our
opinion, it has not gone beyond what the Act has
contemplated or is any way in conflict thereof.
Hence, this has to be treated as if the same is
contained in the Act. Wide discretion has been given
to the specified officer under Section 80 of the Act
to make a choice between a Criminal Court and a
Security Force Court but Rule 41 made for the
purposes of carrying into effect the provision of the
Act had laid down guidelines for exercise of that
discretion. Thus, in our opinion, Rule 41 has neither
gone beyond what the Act has contemplated nor it has
supplanted it in any way and, therefore, the
Commanding Officer has to bear in mind the guidelines
laid for the exercise of discretion.
25Page 26
To test as to whether the Commanding Officer, who
had exercised the power under Section 80 of the Act,
satisfied the aforesaid requirement, it is apt to
reproduce the application filed by him in this
regard. The relevant portion of the application
reads as follows:
“Whereas a criminal case under FIR No.
04/201 of Police Station Nishat titled State
Vs. Lakhwinder Kumar and another is pending
against Lakhwinder Kumar and Randhir Kumar
Birdi before your Court for adjudication.
2. Whereas the said accused persons namely
Lakhwinder Kumar (No. 01005455
Constable of 68 Bn BSF) and Randhir
Kumar Birdi (Commandant BSF) are
serving under my command and,
3. Whereas in exercise of my discretion as
envisaged in Section 80 of the BSF Act,
1968, I have decided to institute
proceedings against the said accused
persons Lakhwinder Kumar and Randhir
Kumar Birdi before the Border Security
Force Court.
4. Whereas, the accused persons i.e.
Lakhwinder Kumar and Randhir Kumar
Birdi are presently under judicial
custody and in your control.
5. I therefore request you to stay
proceedings in your court against the
two accused persons and may forward all
connected documents and exhibits of
this case and custody of accused person
to the undersigned as per Section 549
26Page 27
of Cr.P.C. 1989 (J & K) for instituting
proceedings against them under the BSF
Act and Rules made thereunder.
6. That the outcome of the trial of the
accused persons by Border Security
Force Court of the result of effectual
proceedings instituted or ordered to be
taken against them shall be intimated
as per Rules 7 of the J & K Criminal
Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1983.”
The Commanding Officer, thus, has exercised his
power under Section 80 of the Act and excepting to
say that the said power has been exercised in his
discretion, there is not even a whisper as to why
said discretion has been exercised for trial of the
accused persons by a Security Force Court. The
Commanding Officer has nowhere stated that the trial
of the accused by Security Force Court is necessary
in the interest of discipline of the Force. Once a
statutory guideline has been issued for giving effect
to the provisions of the Act, in our opinion, the
exercise of discretion without adherence to those
guidelines shall render the decision vulnerable. In
our opinion, the Commanding Officer has exercised his
power ignorant of the restriction placed on him under
27Page 28
the Rules. Having found that the Commanding
Officer’s decision is illegal, the order passed by
the learned Chief Judicial Magistrate as affirmed by
the High Court based on that cannot be allowed to
stand.
It has also been pointed out on behalf of the
appellant that after lodging of the first information
report, the Force voluntarily handed over the custody
of accused Lakhwinder Kumar on 10th of February, 2010
and R.K. Birdi on 4th of March, 2010 and allowed the
investigation to be conducted by the police without
any objection and did not exercise option for trial
by Security Force Court. Later on, such an option
cannot be exercised, submits the learned counsel. In
support of the submission, reliance has been placed
on a decision of this Court in the case of Joginder
Singh v. State of H.P., (1971) 3 SCC 86, and our
attention has been drawn to Paragraph 29 of the
judgment which reads as follows:
“29. Rule 4 is related to clause (a)
of Rule 3 and will be attracted only
when the Magistrate proceeds to conduct
28Page 29
the trial without having been moved by
the competent military authority. It is
no doubt true that in this case the
Assistant Sessions Judge has not given a
written notice to the Commanding Officer
as envisaged under Rule 4. But, in our
view, that was unnecessary. When the
competent military authorities, knowing
full well the nature of the offence
alleged against the appellant, had
released him from military custody and
handed him over to the civil
authorities, the Magistrate was
justified in proceeding on the basis
that the military authorities had
decided that the appellant need not be
tried by the Court-martial and that he
could be tried by the ordinary criminal
court.”
This submission does not commend us. As observed
earlier, on the very date of filing of the chargesheet, an application was filed on behalf of the
Force seeking time to exercise option for trial of
the accused by the Security Force Court. On the
following date such an application was filed. At
that particular point of time the trial of the
accused persons had not commenced and before it could
commence, the option was exercised. As regards the
authority of this Court in the case of Joginder Singh
(supra), the same is clearly distinguishable. In the
said case, the Criminal Court proceeded with the
29Page 30
trial of a military personnel without complying Rule
4 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952, which
obliged the Criminal Court to give written notice to
the Commanding Officer of the accused before trying
the said accused. The Criminal Court did not give
any notice to the Commanding Officer and proceeded to
try the accused and ultimately conviction was
recorded. Said conviction was assailed on the ground
that the Criminal Court having proceeded to try the
accused without giving any notice, the conviction is
vitiated. While answering the said question this
Court took into consideration the conduct of the
Commanding Officer of releasing the accused from
military custody and handing over the accused to the
authorities and in that background observed that the
Criminal Court was justified in proceeding with the
trial and failure to give notice to the Commanding
Officer by the Criminal Court shall not vitiate the
conviction. Here, in the present case, the Force has
exercised his option for trial of the accused
immediately on submission of the charge-sheet and
30Page 31
before the commencement of the trial. Hence, the
submission made has no substance and is rejected
accordingly.
In the facts and circumstances of the case, we
give liberty to the Director General of the Force, if
so advised, to re-visit the entire issue within eight
weeks bearing in mind the observation aforesaid in
accordance with law and if he comes to the conclusion
that the trial deserves to be conducted by the
Security Force Court, nothing will prevent him to
make an appropriate application afresh before the
Chief Judicial Magistrate. Needless to state that in
case the Director General of the Force takes recourse
to the aforesaid liberty and files application for
the trial by the Security Force Court, the Chief
Judicial Magistrate shall consider the same in
accordance with law. It is made clear that
observations made in these appeals are for the
purpose of their disposal and shall have no bearing
on trial.
31Page 32
In the result, both the appeals are allowed, the
impugned judgment and order of the Chief Judicial
Magistrate dated 25th of November, 2010 and that of
the High Court dated 21st October, 2011 are set aside.
The Security Force Court shall forthwith transmit the
record sent to it, to the Chief Judicial Magistrate,
Srinagar, who in turn shall proceed in the matter in
accordance with law bearing in mind the observation
aforesaid.
……………………..………………………………..J.
(CHANDRAMAULI KR. PRASAD)
………….……….………………………………..J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI,
APRIL 25, 2013
32Page 33
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