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2003 DIGILAW 598 (GAU)

Mahipal Singh v. Union of India (UOI)

2003-12-22

BIPLAB KUMAR SHARMA

body2003
JUDGMENT B.K. Sharma, J. 1. By this writ petition, the Petitioners have invoked Extra-ordinary Jurisdiction of this Court to annul an action of the Respondent, i.e. BSF authority transferring the case against the Petitioners to the Criminal Court for fresh trial after the prosecution has failed to established the charges by adducing evidence during the summary disposal proceeding under the BSF Act and also to quash consequent re-initiated of the said criminal case by the Criminal Court. 2. The brief facts as stated in the writ petition leading to the filing of this writ petition are as follows: On 25.06.1989 at about 6 P.M. when the Petitioners were detailed for patrolling duty near an international border outpost, they received information that some contraband goods were being smuggled by some smugglers from Bangladesh to India and vice versa. On receipt of such information, it is the case of the Petitioners, that they had laid trap and confronted the smugglers. Some armed smugglers with the help of some local villagers who were advancing towards the patrolling party, even after being cautioned did not stop and attacked some members of the patrolling party including the Petitioner No. 1. Situated thus, the patrolling party, more particularly the Petitioner No. 1, had to resort to "firing for self defence. Thereafter, the smugglers fled away from the place of occurrence. The party commander then decided to leave the place and when they were about to leave the place, a huge mob encircled the patrolling party. After due warning the party commander had to resort to firing to disburse the unruly mob. Amidst this happenings, the smugglers threw their loads and made good their escape from the place in the darkness. Upon search of the area the patrolling party recovered certain items. Thereafter, on 26.06.1989 the commander of the patrolling party lodged an FIR in the Patharkandi Police Station which was registered as Patharkandi P.S. Case No. 174/89 under Sections 147/148/149/379/511 of IPC and deposited the seized goods to the customs authority. A special situation report was also sent to the Bn. Head Quarter giving details of the incidents. 3. On the other hand the local villagers also lodged an FIR on 25.06.1989 without naming any of the Petitioners. A special situation report was also sent to the Bn. Head Quarter giving details of the incidents. 3. On the other hand the local villagers also lodged an FIR on 25.06.1989 without naming any of the Petitioners. In the said FIR it was alleged that some BSF personnel numbering about 15/16 along with 10/12 tribal people trespassed into their shops and tried to forcibly take away 'bidis' and on getting resistance from the people of the market, started indiscriminate firing resulting in death of one Abdul Jobbar and one Rashid Ahmed, besides injuring many others. On the basis of the said FIR, Patharkandi PS. case No. 173/89 under Section 147/148/149/448/302 of IPC was registered. The police upon investigation submitted a charge-sheet in the Court of S.D.J.M. (Sadar), Karimganj on 23.11.1990 in GR Case No. 629/89 against the Petitioners. 4. The learned Magistrate issued a process for production of the Petitioners. At that stage the Deputy Inspector General of BSF took a decision in exercise of powers under Section 80 of the BSF Act that the Petitioners would be tried by a Security Force Court and the decision was communicated to the learned Magistrate. But no orders were passed by the Magistrate and the criminal proceeding which was initiated continued to progress. Consequently, there arose a dispute/conflict of jurisdiction between the Criminal Court and the Security Force Court. Therefore, the BSF authority by letter dated 24.10.1991 referred the matter in exercise of powers under Section 80(2) of the Act to the Central Government for determination of the question as to the Court before which the Petitioners were to tried. The Central Govt. upon consideration of the matter ordered that the case to be tried by a Security Force Court, constituted under the Act. The order in that respect was communicated by the Ministry of Home Affairs, Govt. of India by their letter dated 17.03.1993. Thereafter, upon information furnished to the learned Magistrate about the decision of the Central Govt. by his order dated 03.05.1993 directed that the case diary and all relevant papers be sent to the DIG, BSF, Massimpur for trial of the Petitioners by a Security Force Court. 5. On receipt of the Criminal Court records, the BSF authorities initiated the proceedings against the Petitioners under the provisions of BSF Court and the Rules. by his order dated 03.05.1993 directed that the case diary and all relevant papers be sent to the DIG, BSF, Massimpur for trial of the Petitioners by a Security Force Court. 5. On receipt of the Criminal Court records, the BSF authorities initiated the proceedings against the Petitioners under the provisions of BSF Court and the Rules. After reducing the allegation in to writing in the form of offence report/charge-sheet and on conclusion of the hearing of the charges, the Commandant ordered on 09.10.1995 for preparing the record of evidence. Thereafter, the Commandant initiated the proceedings for preparing the record of evidence. The evidence of three witnesses were recorded. According to the Petitioners none of them supported the charges. Other civilian witnesses were also summoned time and again by the BSF authority, but none of them turned up to give evidence. 6. It is the case of the Petitioners that under those circumstances, BSF authority was required to proceed further in accordance with law for the purpose of coming to a conclusion. Instead, the BSF authority sought advice on the matter from the Chief Law Officer, New Delhi for early disposal of the case. Meanwhile, the Petitioner No. 1 also filed a representation before the Chief Law Officer on 28.03.1997 praying for issuance of necessary directions to summon the civilian witnesses and in the event of non appearance to dismiss the charges. The said Law Officer opined by his communication dated 10.04.1997 that the facts and circumstances of the case did not permit for trial by a Security Force Court and as such the decision had been taken to inform the Criminal Court to proceed with the case. In terms of advice of the Law Officer, the BSF authority transferred the case on 29.03.1997 to the Court of Chief Judicial Magistrate, Karimganj for trial of the Petitioners by the Criminal Court. The learned Magistrate, on receipt of the case records took fresh cognizance and ordered for issuance of notice on 09.04.1997 for appearance of the Petitioners. In pursuance to the same, summons were issued to the Petitioners fixing 09.02.1998 which was later extended to 28.03.1998. It was at that stage the writ petition was filed and this Court while admitting the same by its order dated 27.03.1998 provided by interim order that the further proceedings in the Criminal case be stayed. 7. Mr. In pursuance to the same, summons were issued to the Petitioners fixing 09.02.1998 which was later extended to 28.03.1998. It was at that stage the writ petition was filed and this Court while admitting the same by its order dated 27.03.1998 provided by interim order that the further proceedings in the Criminal case be stayed. 7. Mr. B.C. Das, learned Counsel appearing for the Petitioner referring to various provisions of the Border Security Force Act 1968 and Rules framed therein, i.e. Border Security Force Rules 1969 submitted that the decision to re-initiate the proceeding by the Criminal Court is illegal and contrary to the said provisions. Mr. Das further submitted that the decision of the Central Govt. for trial of the case under Section 80 of the BSF Act is final. Since the BSF authority could not procure the presence of the witnesses, it is not within its competence and jurisdiction to send back the case record to the Criminal Court for re-initiation of the proceedings by the said Court. Mr. Das further submitted that the Security Force Court took a final decision in the matter on the basis of materials and evidence available on record. He further submitted that once the Central Govt. had taken a decision for trial of the Petitioners by the Security Force Court, the said decision is final and cannot be interfered with and/or reviewed by the BSF authority. According to him even the Central Govt. is not empowered to review the said final decision, more particularly, on the ground on which the BSF authority has remitted back the matter to the Criminal Court for re-initiation of the proceedings. According to Mr. Das, the learned Counsel for the Petitioner, the charges against the Petitioners are liable to be dismissed and the proceedings before the Security Force Court should come to an end on the basis of the evidence on record and that there is no question of referring back the matter to the Criminal Court on the ground of non-availability of witnesses. The BSF authority itself having decided to try the offence allegedly committed by the Petitioners though the Security Force Court and itself having referred the matter to the Central Govt. The BSF authority itself having decided to try the offence allegedly committed by the Petitioners though the Security Force Court and itself having referred the matter to the Central Govt. for a final decision, the said authority cannot now turn round their own stand so as to remand the matter back to the Criminal Court and that too on the ground of non-appearance of the witnesses, it is submitted. In any case, the non-appearance of witnesses before the Security Force Court would not entitle the BSF authority to remand back the matter to the Criminal Court in violation of the final decision of the Central Govt. 8. Mr. B. Sharma, learned Addl. C.G.S.C., appearing on behalf of the Respondents on the other hand supported the decision of the BSF authority. Referring to the averments made in the affidavit in opposition filed on behalf of the Respondents, Mr. Sharma submitted that the BSF authority is within its competence and jurisdiction to refer back the matter to the Criminal Court as has been done in the instant case. He has drawn my attention to Section 80 of the BSF Act. The provision of the Section 80 of the said Act empowers the BSF authority to make a choice between the Criminal Court and the Security Force Court. His further submission is that when a particular power is vested with the BSF authority and a decision is taken on that basis, it has got the power of review also. 9. In the affidavit in opposition the Respondents while admitting the factual aspects of the matter have taken the stand in para 10 of the said affidavit that the recording of evidence could not be completed because 24 out of the total 26 civilian witnesses did not report to make their statements before the recording Officer inspite of summons sent to them twice. It is the stand of the Respondents in the affidavit that it was under these circumstances the direction for finalisation of recording of evidence was sought for from the BSF Head quarter which in turn directed to re-transfer the case to the Criminal Court for further legal action against the Petitioners. Thus, it is the stand of the Respondents in their affidavit that failure to procure the presence of the witnesses on behalf of the prosecution resulted in re-transfer of the case to the Criminal Court. 10. Thus, it is the stand of the Respondents in their affidavit that failure to procure the presence of the witnesses on behalf of the prosecution resulted in re-transfer of the case to the Criminal Court. 10. Placing reliance on the following decisions of the Apex Court, Mr. B.C. Das, learned Counsel for the Petitioner, submitted that the decision of the Central Govt. for trial of the offences by the Security Force Court was final and the same could not have been tinkered with by the BSF authority: a) AIR 1961 SC 1762 b) AIR 1965 SC 247 c) (1971) 3 SCC 86 d) (1995) 1 SCC 90 11. In the aforesaid decisions referred to by Mr. B.C. Das, learned Counsel for the Petitioners, the Apex Court has inter alia dealt with the question of finality of the decision of the Central Govt. In this connection, the observations of the Apex Court in the case of Ram Sarup v. Union of India as reported in the AIR 1965 SC 247 are quoted below: In short, it is clear that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court-Martial or by an ordinary Criminal Court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed. Lastly, it may be mentioned that the decision of the relevant military officer does not decide the matter finally. Section 126 empowers a criminal Court having jurisdiction to try an offender to require the relevant military officer to deliver the offender to the Magistrate to be proceeded against according to law or to postpone proceedings pending reference to the Central Government, if that Criminal Court be of opinion that proceedings be instituted before itself in respect of that offence. When such a request is made, the military officer has either to comply with it or to make a reference to the Central Government whose orders would be final with respect to the venue of the trial. When such a request is made, the military officer has either to comply with it or to make a reference to the Central Government whose orders would be final with respect to the venue of the trial. The discretion exercised by the military officer is therefore subject to the control of the Central Government. 12. The Apex Court in the same line has observed in the case of Balbir Singh v. State of Punjab has reported in (1995) 1 SCC 90 as follows: A conjoint reading of the above provisions shows that when a criminal Court and Court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, to decide before which Court the proceedings shall be instituted and if that officer decides that they should be instituted before a "Court-martial", to direct that the accused persons shall be detained in air force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence while on "active service" is in the first instance with the Air Force Authorities. The criminal Court, when such an accused is brought before it shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, to decide whether they would like to try the accused by a Court-martial or allow the criminal Court to proceed with the trial. In case, the Air Force Authorities decide either not to try such a person by a Court-martial or fail to exercise the option when intimated by the criminal Court within the period prescribed by Rule 4 of the 1952 (supra), the accused can be tried by the ordinary criminal Court in accordance with Code of Criminal Procedure. On the other hand if the Authorities under the Act opt. to try the accused by the 'Court-martial', the criminal Court shall direct delivery of the custody of the accused to the Authorities under the Act and to forward to the Authorities a statement of the offence of which he is accused. On the other hand if the Authorities under the Act opt. to try the accused by the 'Court-martial', the criminal Court shall direct delivery of the custody of the accused to the Authorities under the Act and to forward to the Authorities a statement of the offence of which he is accused. It is explicit that the option to try the accused subject to the Act by a Court-martial is with the Air Force Authorities and the accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the Air Force Authorities for good and proper reasons. There may be a variety of circumstances which may influence the decision of the Air Force Authorities as to whether the accused be tried by a Court-martial or by a criminal Court. 13. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and the materials on record. As per the provisions of Section 46 and 47(a) of the BSF Act 1968, the civil offence as defined under Section (2)(1)(c) are triable by the Border Security Force Court constituted under the said Act. This position is evident from the offence report. Moreover, the Central Govt. by issuing various notifications as available in Annexure-E, F, G and H(I) to the writ petition has conferred various powers to be exercised by the members of the force provided under the Code of Criminal Procedure, Customs Act, Opium Act etc. within 15 kilometers of the border area, in the State of Assam. It is on record that on the very initial stage of launching the prosecution the BSF authority took a decision to try the Petitioners by Security Force Court providing that they would remain in Force custody. Pursuant to the dispute which had arisen in view of the proceedings before the Criminal Court, the BSF authority in exercise of its power under Section 81(2) of the Act referred the matter to the Central Govt. and the Central Govt. gave its opinion that the offence would be tried by a Security Force Court constituted under the Act. Such decision of the Central Govt. is final as per the provisions of Section 81(2). 14. After such a final decision by the Central Govt., the Commandant had initiated the proceedings for preparation of record of evidence as per Rule 48. gave its opinion that the offence would be tried by a Security Force Court constituted under the Act. Such decision of the Central Govt. is final as per the provisions of Section 81(2). 14. After such a final decision by the Central Govt., the Commandant had initiated the proceedings for preparation of record of evidence as per Rule 48. The records of the proceedings revealed that the evidence of three witnesses were recorded on different dates. The plea of the Petitioners is that none of them supported the charges which have not been denied by the Respondents. Other civil witnesses were also summoned time and again, but none of them turned up to give evidence. In such a situation the BSF authority was required to proceed further in accordance with law for the purpose of coming to a conclusion. They ought to have taken appropriate legal steps, if required, for summoning the witnesses or completed the preparation of record of evidence in accordance with Rule 48(8) of the BSF Rules. 15. The categorization of offence as enumerated under Section 46 and 47 of the said Act, definitely brings about a dispute and conflict of jurisdiction between the Criminal Court and Security Force Court. In order to avoid the conflict as aforesaid, the provisions have been made in Section 80 and81 of the Act and Rule 41 of the Rules which are quoted below: Section 80: Choice between Criminal 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 Inspector General 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 the Court the proceeding 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. Section 81: Power of Criminal Court to require delivery of offender (1) When a criminal Court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may by written notice, require the officer referred to in Section 80 at his option, either to deliver over the offenders to the nearest magistrate to be proceeded against according to law, or to postpone proceeding, pending a reference to the Central Govt. (2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the Court before which the proceeding are to be instituted for the determination of the Central Govt. whose order upon such reference shall be final. Rule 41: Trial of cases either by Security Force Court or criminal Court (1) where an offence is triable both by a Criminal Court and a Security Force Court, an officer to in Section 80 may- (1)(a) where the offence is committed by the accused in the Courts of the performance of his duty of the Force, or (b) where the offence is committed in relation to property belonging to the Govt. or the Force or a person subject to the Act or (c) where 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 in would be necessary in the interest of disciples 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 offence 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 an 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: (c) the offender can, in view of the nature of the case, be dealt with summarily under the Act. 16. 16. A conjoint reading of the aforesaid provisions shows that when the Criminal Court and the Security Force Court each have jurisdiction in respect of trial of a particular offence in the first instance, it shall be in the discretion of the BSF authority to decide before which Court the proceedings shall be instituted. If it decides they shall be instituted before the Security Force Court, the accused persons shall be detained in Force custody. This option to try the person subject to the Act who commits the offence "while on active duty" is in the first instance with the BSF authority. But its decision does not decide the matter finally. If there is difference of opinion and dispute between the Criminal Court and Security Force Court about the forum of trial, the final decision rests with the Central Govt. and the proceeding has to be accordingly commenced and disposed of to its logical conclusion. 17. Rules 43 to 48 provides details of the manner of hearing the charges against the offender, the preparation of record of evidence or abstract of evidence. Rule 51 and 51(A) provide for the procedure for disposal of cases after preparation of record of evidence or abstract of evidence. 18. In the instant case, the Petitioners allegedly committed the offence "while on active duty". Further, the alleged act was committed at a place specified by the Central Government. On both the counts offence is triable by the Security Force Court. The BSF authority as reflected above, in fact, had decided that the Petitioners would be tried by the Security Force Court. Being confronted with the Criminal Court, the matter was referred to the Central Government in exercise of power conferred by the provisions of the Act referred to above by the BSF authority. The Central Govt. upon consideration of the matter decided that the proceedings be instituted in Security Force Court. Such decision of the Central Government was final. Thereafter, it was the duty of the Security Force Court to decide the matter finally. Instead, they referred the matter for re-trial by the Criminal Court solely on the ground that they failed to procure attendance of the witnesses, unmindful of the fact that the same state of affairs would continue before the Criminal Court also. 19. The BSF authority pursuant to the final decision of the Central Govt. Instead, they referred the matter for re-trial by the Criminal Court solely on the ground that they failed to procure attendance of the witnesses, unmindful of the fact that the same state of affairs would continue before the Criminal Court also. 19. The BSF authority pursuant to the final decision of the Central Govt. initiated proceedings against the Petitioners under the provisions of the said Act and Rules. In accordance with rules 43, 44 and 45 of the Rules of 1969, the charges were heard by the commander who thereafter ordered for preparing the records of evidence. Records of evidence was initiated wherein the statement of three witnesses were recorded. Thereafter, the BSF authority could not procure attendance of any of the witnesses inspite of service of summons at least on two occasions as revealed in the affidavit in opposition. It was at that stage the Security Force Court proceeding was stopped and the matter was re-transferred to the Criminal Court. In my considered opinion, after the BSF authority instituted proceeding as per the order of the Central Govt., they were under legal obligation to complete the proceeding in accordance with the rules. They were under a legal duty to complete the record of evidence in accordance with the Rule 48(A) and to take a final decision and dispose of the case in accordance with Rule (51) and (51)(A). It is the assertion of the Petitioners that on the basis of evidence on record, the charges against the Petitioners were liable to be dismissed, instead the BSF authority re-transferred the case to the Criminal Court. The aforesaid decision of the Apex Court coupled with provisions of Section 81 of the BSF Act makes it abundantly clear that the decision of the Central Govt. as regards the forum of trial is final and the same could not have been altered by the BSF authority and that too on the ground of failure to procure the presence of the witnesses. The listed witnesses mayor may not appear to depose before the Court. The records revealed that the BSF authority made endeavour to procure the attendance, of the witness by issuing summons. However, except three, none of the witnesses came forward to depose before the Security Force Court. The listed witnesses mayor may not appear to depose before the Court. The records revealed that the BSF authority made endeavour to procure the attendance, of the witness by issuing summons. However, except three, none of the witnesses came forward to depose before the Security Force Court. Situated thus, it was the duty of the Security Force Court to take a decision in the matter, but instead the BSF authority re-transferred the matter to the Criminal Court. There is no mention as to whether such a course of action was backed by any decision of the Central Govt. The Central Govt. having given its decision for trial of the offence by the Security Force Court, the BSF authority could not have interfered with the same and that too on the ground as specified by the BSF authority. There is no guarantee that the Criminal Court would be able to procure the attendance of the rest of the witnesses. In any case in my considered opinion, the failure to procure the attendance of the witnesses by the BSF authority before the Security Force Court would not entitle them to re-transfer the matter to the Criminal Court which will be in violation of the decision of the Central Govt. After the decision of the Central Govt. that the case shall be tried by a Security Force Court constituted under the Act and the transfer of the case by the Criminal Court to the BSF authority for further proceeding at their end as ordered by the Central Govt., which is final, the BSF authority had no power and jurisdiction to re-transfer the case to the Criminal Court which became functus officio. No amount of reason or ground could stand in the way of commencing and disposing of the case by the BSF authority who was conferred with the task by the Central Govt. The order of the Central Govt. being final in this regard, it creates a legal bar for re-initiation and continuance of the proceedings before the Criminal Court. 20. The BSF Act and the Rules are complete Code in itself. The powers and functions of different authorities have been specifically provided for. The power to resolve the conflict of jurisdiction between the Criminal Court and the Security Force Court has been vested in the Central Govt. and its 'decision, is final. 20. The BSF Act and the Rules are complete Code in itself. The powers and functions of different authorities have been specifically provided for. The power to resolve the conflict of jurisdiction between the Criminal Court and the Security Force Court has been vested in the Central Govt. and its 'decision, is final. The provision is such that it does not admit any change or alteration in the decision by way of review. Moreover, such decision is not open to review as no specific powers have been provided1 in the Act. Power of review is not an inherent power. The contention of the Respondents in their counter affidavit that there is no bar to change the decision owing to change of circumstances and the legal position is equally not tenable. The Central Govt. by their letter dated 17.02.93 (Annexure-K of the writ petition) had ordered that the case shall be tried by a Security Force Court constituted under the Border Security Force Act 1968. The proceeding accordingly proceeded before the Security Force Court and on their failure to procure the rest of the witnesses inspite of service of summons on them; the BSF authority sought for legal opinion instead of closing the proceeding by appropriate order. The Law Officer by his letter dated 10.04.1997 (Annexure -Q of the writ petition) simply opined that the facts and circumstances of the case did not permit for trial by the Security Force Court and conveyed the decision to inform the Criminal Court to proceed with the case. 21. The aforesaid letter dated 10.04.1997 issued by the Law Officer is in conflict with the decision of the Central Govt. as conveyed by the letter dated 17.02.1993. Moreover, nothing has been stated in the letter as to what are the facts and circumstances which did not permit for trial by the Security Force Court. 22. There is another aspect of the matter which also requires consideration. The alleged occurrence took place in June, 1989. By now more that 14 years have passed and the proceedings initiated against the Petitioners have not attained its finality. Moreover, as disclosed in the affidavit in opposition, two BSF personnel involved in the case have been discharged/dismissed from service and two other personnel involved in the case and who were on deputation to BSF have already been repatriated to their parent department. Moreover, as disclosed in the affidavit in opposition, two BSF personnel involved in the case have been discharged/dismissed from service and two other personnel involved in the case and who were on deputation to BSF have already been repatriated to their parent department. No useful purpose will be served by allowing the proceedings to continue by the Criminal Court at this stage. In this connection, I may gainfully refer to a decision of the Apex Court as reported in (1972) 3 SCC 504 (State of U.P. v. Kapil Deo Shukla) wherein the Apex Court on the ground of long delay and protracting the trial against the accused persons for many years held that it would neither be expedient nor in the larger interest of justice that the trial should be allowed to proceed. In the said decision the Apex Court in paragraph 13 referred to its own earlier decision. Paragraphs 13 and 15 of the said judgment are quoted as follows: 13. In a recent case of proceedings for alleged perjury this Court held that lapse of a long time, in that case of ten years, was a proper ground for holding that launching of a persecution was inexpedient. Chajoo Ram V. Radhey Shyam similarly, in Machander V. Hyderabad, where an order of conviction under Section 302 was set aside by this Court for failure to examine the Appellant under Section 342 of the Code, a remand was declined on the ground that the accused had been arrested in 1950 and had been on his trial one way or the other for over four and half years. In that connection the Court observed at page 529 of the report as follows: We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they ma go. 15. It is a matter of some regret that on such a view, the Respondent against whom serious charge of a public nature stand, should not be proceeded with. But as against that there is equally the fact that long lapse of time and the impossibility of supplying him copies of police statement and other relevant documents is likely to end in the trial not being fair and just. In these circumstances, we have come to the conclusion that it is neither expedient nor in the large interest of justice, that the trial with all the aforesaid possible deficiencies should be allowed to proceed. In any event, this is, in our view, not a case where this Court should interfere with the orders of the High Court in an appeal under Article 136 of the Constitution. 23. In view of the above position of law and having regard the circumstances involved in this case, I am constrained to hold that reinitiation of the criminal proceeding against the Petitioners is illegal and is not sustainable. Accordingly the writ petition is allowed and the criminal proceedings in G.R. Case No. 629/89 in the Court of S.DJ.M., Karimganj, initiated against the Petitioners is set aside and quashed. As a consequence of such quashing of the proceedings, the BSF authority will now pass final order on the basis of the proceedings initiated against the Petitioners in the Security Force Court. Needless to say that with the quashing of the criminal proceedings in G.R. Case No. 629/89 in the Court of Sub-divisional Judicial Magistrate, Karimganj, the impugned orders dated 29.03.97 and 09.04.97 also stand quashed. 24. No order as to cost. Petition Allowed