JUDGMENT 1. THIS revision application is pertaining to Mathabhanga Police Station Case No. 134 of 2004 vide G.R. No. 258 of 2004 pending in the Court of learned Additional Judicial Magistrate, Mathabhanga, Coochbehar. The applicant herein is the Deputy Inspector General, Sector Head Quarters, Border Security Force, Coochbehar, West Bengal. The petitioner has challenged the legality, validity and propriety of the order passed in Criminal Revision No. 21 of 2006 dated 18.12.2006 by the learned Additional Sessions Judge, Second Fast Track Court, Coochbehar whereby the revision application was allowed and the order passed by the learned Additional Chief Judicial Magistrate, was set aside. 2. ON 3.12.2004 at about 12 hours the B.D.O., Mathabhanga along with S.D.O., Mathabhanga and S.D.P.O., Mathabhanga in three vehicles had been to Mahishcharu to take over possession of four statues which were recovered by the local villagers during escavation. While returning with the recovered statues, two B.S.F. constables stopped their vehicles on the ground that they would not allow the vehicle to move till arrival of the in-charge of the Border Security out post. The local villagers numbering about 400 also assembled on the spot at that time, manhandled the S.D.O. and his associates, burnt their vehicles and snatched away the recovered statues. Everything was done in presence of those two B.S.F. constables. The case was reported to the local police station and on the basis of the said report, the Mathabhanga Police Station Case No. 134 of 2004 was registered. The investigation ended in a charge-sheet against as many as 25 persons including constable Subhas Chandar and Constable Prabin Biswas belonging to B.S.F. The Deputy Inspector General, Sector Head Quarters, B.S.F., Coochbehar had taken out an application on 3.3.2006 in the Court of learned ACJM, Mathabhanga praying for transfer of the case as far as constable accused Prabin Biswas and Subash Chandar by invoking the provisions of the Boarder Security Force Act. The learned ACJM, Coochbehar, however, allowed that prayer by an order dated 20.3.2006. The learned ACJM, Coochbehar, however, allowed that prayer by an order dated 20.3.2006. The Government of West Bengal filed a revision application challenging the said order passed by the learned ACJM which was registered as Criminal Revision No. 21 of 2006 and disposed of on 18.12.2006 by the learned Revisional Court who was pleased to set aside the order of learned ACJM on the ground that transferring the case of the B.S.F. officials in view of B.S.F. Act vis-a-vis Section 475 of Cr.P.C. was entirely discretion of the Magistrate and that since the B.S.F. Jowans were found involved in an offence together with civilians, the learned ACJM should not have transfered the case of the B.S.F. for adjudication by them in their Court. The DIG, Sector Head Quarters, B.S.F., Coochbehar has come up with this review application challenging the said order mainly on the grounds that the learned First Revisional Court was entirely wrong in interpreting the provisions of law in this regard. The point to be decided is whether or not the order impugned legal, valid and sustainable in law? 3. MR. Tushar Kanti Mukherjee, learned Counsel appearing on behalf of the petitioner contended that Section 80 of the B.S.F. Act, 1968 leaves no room of doubt that when an offence is committed by an Army Personnel, a member of B.S.F. and the competent authority of B.S.F. exercised its discretion under Section 80 of the Act that the accused may be tried in the Border Security Force Court, the learned Additional Chief Judicial Magistrate, Cooch Behar made no mistake in allowing that prayer. Rather, the learned First Revisional Court failed to understand the spirit of relevant provisions of law and mis-interpreted the law in this regard. 4. A bare perusal of Section 80 of the 1968 Act makes it abundantly clear that the powers have been conferred on the Deputy Inspector General, Border Security Force to take a decision whether the case of the petitioner has to be tried by Criminal Court or by the General Security Force Court. 4. A bare perusal of Section 80 of the 1968 Act makes it abundantly clear that the powers have been conferred on the Deputy Inspector General, Border Security Force to take a decision whether the case of the petitioner has to be tried by Criminal Court or by the General Security Force Court. It is also found that when an application to that effect is filed by Deputy General, DIG, B.S.F., Head Quarters exercising its discretion under Section 80 of the 1968 Act, the Magistrate, in fact, is left with no option but to forward the B.S.F. Personnel/accused together with all the documents of the proceeding to the DIG, BSF for the purpose of instituting proceeding against the accused B.S.F. personnel. This is mandate of law and intention of the legislature. Section 80 of the B.S.F. Act, 1968 is reproduced below :- "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 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 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." 5. SECTION 475 of the Code of Criminal Procedure is reproduced below:- "475. SECTION 475 of the Code of Criminal Procedure is reproduced below:- "475. Delivery to Commanding Officers of persons liable to be tried by Court-martial.-(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, navel or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, navel or air-force station, as the case may be, for the purpose of being tried by a Court-martial. (2) Every Magistrate shall, on receiving a written application for that purposes by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence. (3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial." 6. A plain reading of Section 80 of the 1968 Act together with Section 475 of the Code of Criminal Procedure especially sub-section (1) of Section 475 of the Code makes it abundantly clear that on receiving such an application from the commanding officer of any unit of armed forces of the Union, a Magistrate shall, in proper case, deliver that accused belonging to armed forces of the Union together with a statement of offence of which he is accused, to the commanding officer of the unit to which he belongs. However, the operation of Section 80 of the Border Security Force Act, 1968 and Section 475 of the Code of Criminal Procedure Code is not automatic. The Section 47 of the Border Security Force Act provides that a person subject to the said 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-while on active duty at any place outside India or at any place specified by the Central Government by notification in this behalf. 7. THEREFORE, the question comes in is whether the B.S.F. personnels who are made accused in the case belonging to B.S.F. were in "active duty" or not at the time of commission of alleged offence. The learned First Revisional Court, however, did not consider this question at all. According to Mr. Mukherjee, the facts and circumstances of the present case indicate clearly that the B.S.F. personnel made accused in the case were in "active duty" at the relevant time of alleged commission of offence. In view of Section 47 of the 1968 Act and in pursuance of provisions of clause (a) of sub-section (1) of Section 2 of the Act, the Gazette of India, Extraordinary dated 21.7.2004 the duty of every person referred to in clause (a) of sub-section (1) of Section 2 serving in the State/Union Territories mentioned in the Gazette for the period with effect from 1st July, 2004 to 30.7.2007 are deemed to be "active duty". The alleged incident took place in the month of December 2004. Therefore, the B.S.F. personnel’s who were made accused in the case are deemed to he in "active duty" at the relevant point of time in view of the Gazette notification mentioned above. 8. The alleged incident took place in the month of December 2004. Therefore, the B.S.F. personnel’s who were made accused in the case are deemed to he in "active duty" at the relevant point of time in view of the Gazette notification mentioned above. 8. UNDER Section 475 of the Code of Criminal Procedure when any person, belonging to armed forces of Union is brought before a Magistrate and charged with offence for which he is liable to be tried either by a Court to which the Criminal Procedure Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, navel or air-force station, as the case may be, for the purpose of being tried by a Court-martial. In the instant case, the official of the B.S.F. who have been made accused in the case were not brought before the learned Magistrate. The petition, however, was filed by DIG, Sector Head Quarter, B.S.F., Coochbehar on 3.3.2006 which shows that they were detained in B.S.F. custody on that particular date. That being the fact, the learned Revisional Court should not have allowed the revisional application upsetting the order of learned Magistrate. While the offence alleged was committed by B.S.F. personnels who were made accused in the case while in "active duty" in view of Section 47 of the 1968 Act and the official notification mentioned above and were already in custody of B.S.F., the learned Magistrate has acted rightly by allowing the petition filed by the competent authority invoking the Section 80 of the B.S.F. Act, 1968 read with Section 475 of the Code of Criminal Procedure. Accordingly, I allow the revision application and set aside the order passed by the learned First Revisional Court. The order passed by the learned Magistrate on 20/3/2006 be given effect without delay. 9. The order be communicated to the learned ACJM by giving plain copy to Mr. Mukherjee who is directed to place it before the learned ACJM. THE learned ACJM is directed to act on the plain copy duly signed by the Assistant Registrar (Court) in order to avoid delay.