JUDGMENT Mr. R.K. Birdi, Commandant 68th Bn Border Security Force, was on his way back to Force Headquarters at Nishat-Srinagar, after his Annual Medical Examination at Composite Hospital Humhama on 05.02.2010, when at about 4.40 p.m, the Border Security Force Personnel accompanying him are stated to have entered into a verbal dual with some boys present at Boulevard Road Brain-Srinagar in the process of clearing Traffic Jam in which the vehicles accompanying Mr. Birdi had got stuck. The verbal dual took ugly turn when Security Personnel started chasing the boys. In the process, Mr. Birdi is stated to have instigated Constable Lakhwinder Kumar to open fire. Lakhwinder Kumar fired two rounds. One of the rounds hit Zahid Farooq Sheikh and the other pierced a willow plant. Zahid Farooq succumbed to the bullet injury. FIR No. 04/2010 was registered at Police Station Nishat in this respect. 2. On completion of investigation in the FIR, Final Police Report indicating commission of offences punishable under Sections 302,109 and 201 Ranbir Penal Code by Lakhwinder Kumar and Randhir Kumar Birdi, was laid before the Chief Judicial Magistrate, Srinagar. 3. On the day of presentation of the Final Police Report, Legal Officer of BSF too appeared before the learned Magistrate seeking time to exercise option for trial of accused by the Security Force Court. 4. On the very second day, the Deputy Inspector General Station Headquarters, BSF Srinagar moved Application informing the learned Chief Judicial Magistrate that Randhir Kumar Birdi, Commandant BSF and Lakhwinder Kumar, Constable were serving under his Command and he had decided to institute proceedings against them before the Border Security Force Court. He, accordingly, requested for stay of proceedings and forwarding all connected documents, exhibits of the case and custody of accused, to him, invoking the provisions of Section 549 of the Code of Criminal Procedure, Svt. 1989 for instituting proceedings against the accused under the BSF Act and Rules framed thereunder. 5. The prosecution contested Commandant’s Application on the ground that Section 80 of the BSF Act was not applicable as the offence committed, being a Civil Offence, was exclusively triable by the Criminal Court. It was submitted that the accused, posted at Gulmarg, were neither performing any official duty nor were they engaged in the maintenance of law and order when the offence was committed by them, their trial by Security Force Court was, therefore, impermissible.
It was submitted that the accused, posted at Gulmarg, were neither performing any official duty nor were they engaged in the maintenance of law and order when the offence was committed by them, their trial by Security Force Court was, therefore, impermissible. It was additionally submitted that having opted earlier not to proceed against the accused under the BSF Act, the Commandant had waived his right to exercise option to try the accused and the case could not, therefore, be referred to the BSF Authorities for trial. 6. Relying upon Government of India’s Notification SO 1473 (E) dated 08.08.2007, in terms whereof, the territories of the State of Jammu and Kashmir were notified as area of Active Service’ for BSF Personnel, in pursuance to Clause (a) of Sub-Section 1 of Section 2 of the BSF Act, learned Chief Judicial Magistrate, Srinagar handed over the custody of accused together with the Charge Sheet, supporting material and the seized articles to the Deputy Inspector General, for trial. 7. The State of Jammu and Kashmir and Ghulam Mohammad Sheikh, the Uncle of deceased Zahid Farooq Sheikh, have questioned learned Chief Judicial Magistrate’s Order dated 25.11.2010 by their separate Revision Petitions. 8. Heard learned counsel for the parties. 9. Assailing learned Chief Judicial Magistrate’s Order, the learned Senior Additional Advocate General, Mr. Magray, appearing for the State and the learned counsel appearing for the family of the Victim, Mr. Ronga, submitted that the offence having not been committed in the course of performance of duty as a member of the Force, the accused cannot be deemed to be on ‘Active Duty’ and in terms of the provisions of Section 47 of the BSF Act, the Security Force Court had no jurisdiction to try them. Elaborating their submissions they submitted that return of the accused from Composite Hospital Humhama towards Nishat was not in the course of performance of their duty as a member of the Force, in that, their posting being at Gulmarg and not in any part of Nishat-Srinagar where the offence was committed, they cannot be treated on ‘Active Duty’.
Elaborating their submissions they submitted that return of the accused from Composite Hospital Humhama towards Nishat was not in the course of performance of their duty as a member of the Force, in that, their posting being at Gulmarg and not in any part of Nishat-Srinagar where the offence was committed, they cannot be treated on ‘Active Duty’. According to them, the offence committed by a member of the Force may be treated to have been done while on ‘Active Duty’ only if, it had been so done during the course of discharge of such duties as contemplated by Section 2 (a) (i) & (ii) of the Act or any other duty akin thereto. The accused being not engaged in any such Duty, referred to hereinabove, pursuant to any lawful Command, were not, therefore, on ‘Active Duty” and the learned Chief Judicial Magistrate had, therefore, acted illegally in handing over their custody for trial by Security Force Court proceeding erroneously on the premise that they were on ‘Active Duty’. Case law explaining the expression ‘while acting or purporting to act in the discharge of official duties’, as it so appears • in Section 197 of the Code of Criminal Procedure, was referred by learned counsel to support their submissions, besides referring to the definition of Duty’, as explained by various Courts, to urge that the accused were not on any such Duty which could be construed as ‘Active Duty’ in terms of Section 2 (a) of the Act. Learned counsel additionally submitted that the Deputy Inspector General having omitted to spell out reasons that had weighed with him in deciding to exercise option for trial of the accused, the demand of custody for trial by the Security Force Court was, therefore, unjustified besides being arbitrary. 10. Learned Assistant Solicitor General of India Mr. Makroo & learned Central Government Standing Counsel Mr. Sharma, appearing for Union of India and the Border Security Force, on the other hand, contended that the Duty of the accused having been declared as ‘Active Duty’ pursuant to Ministry of Home Affairs’ Notification SO 1473 (E) of 08.08.2007 during their posting in the State of Jammu and Kashmir, the option exercised by the Deputy Inspector General was justified because the accused were liable to be tried for commission of the Civil offence under Section 46 of the BSF Act.
Dealing with the plea that the Border Security Force Authorities were estopped to claim custody of the accused for trial, it was submitted by the learned counsel that option is required to be exercised only when the proceedings were laid before the Criminal Court and the same having been exercised, in the present case, on the day the Final Police Report was laid by indicating the intention of the Competent Authority to exercise Option and formally on the second day by filing requisite Application before the learned Magistrate, the Deputy Inspector General, who was the Commanding Officer of the accused and otherwise the Competent Authority under the Adjustment of Jurisdiction Rules, was not in any way disabled or estopped to claim custody of the accused for trial by the Security Force Court. It was further submitted by the learned counsel that all members of the Border Security Force are put through a detailed Medical Examination every year for their Physical Fitness and in case of Officers, of and above the rank of Commandant, such Examination is carried out by a Medical Board constituted under the Orders of concerned IG (Medical). For the year 2009-10, the Medical Board was constituted under the Orders of IG (Medical) at Composite Hospital Humhama, Srinagar. Mr. R.K. Birdi had visited Composite Hospital Humhama pursuant to the directions conveyed vide Signal No. M/7004 dated 29.01.2010, on 3rd and 4th of February, 2010. The Headquarters of 68th Bn BSF being located at Nishat-Srinagar, the accused was, therefore, ‘On Duty’ discharging the Command issued to him for Medical Examination and the offence alleged to have been committed at his instance, while on Duty, would, therefore, even otherwise be an offence on ‘Active Duty”. It was further submitted that as the offence was committed during the period indicated in Notification SO 1473 (E) dated 08.08.2007, declaring the Duty of all BSF Personnel posted in State of Jammu and Kashmir as ‘Active Duty’, the accused were liable to be tried under the BSF Act because the provisions of Section 47 of the Act would not apply in respect of the offences indicated in the Section in case of the members of Force who were on ‘Active Duty” at the time of the commission of offence. 11. Considered the submissions of learned counsel for the parties in the light of case law cited at Bar. 12.
11. Considered the submissions of learned counsel for the parties in the light of case law cited at Bar. 12. The BSF Act contemplates two types of offences, viz. (1) Which are triable exclusively by the BSF Security Force Courts; and (2) Those which are triable by the BSF Courts as also by Criminal Courts. Although in terms of Section 2 (d) of the BSF Act “Civil Offence” means an Offence, i.e., is triable by a Criminal Court, but a conjoint reading of Sections 2 (d), 46 & 47 of the Act, would reveal that all such offences which are triable by the both classes of Courts, i.e.,. BSF Courts and Criminal Courts, would be “Civil Offences”. Section 80 of the Act vests exclusive jurisdiction in the Authorities mentioned in the Section to decide before which of the two classes of Courts, referred to herein-above, the proceedings for trial of Civil Offence(s) would be instituted. The decision so taken, determines the initial jurisdiction for trial of the accused. The Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983, published vide SRO 73 dated 2nd March, 1984, provide procedure for the trial of persons subject to Military, Naval or Air Force Law, or any other law relating to the Armed Forces of the Union by the Criminal Courts or by a Court Martial. The Border Security Force, being an Armed Force of the Union contemplated for ensuring the Security of the Borders of India and for matters connected therewith, as indicated in the preamble of the Border Security Force Act, 1968; the provisions of the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983 would, therefore, govern the proceedings where ‘Civil Offence’ was committed by persons subject to the BSF Act, pursuant to the filing of Final Police Report before a Magistrate. Provisions similar to those appearing in the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983, are there in the Criminal Courts and Border Security Force Court (Adjustment of Jurisdiction) Rules 1969 framed in exercise of the powers conferred by clause (k) of Sub-Section (2) of Section 141 of the Border Security Force Act, 1968, as well.
“Commandant” in relation to a person subject to the Border Security Force Act, in terms of the above Rules, means the Officer Commanding the Unit or detachment to which such person belongs or attached. “Competent Authority”, as defined in the Rules means the Director General, Inspector General or a Deputy Inspector General of the Border Security Force. Ministry of Home Affairs, Government of India has issued Notification SO 1473 (E) dated 8th August, 2007 in pursuance of the provisions of Clause (a) of Sub-Section (1) of Section 2 of the Border Security Force Act, 1968, declaring the duty of every person referred to in the said clause (a) serving in the States/Union territories, indicated in the Notification, which indicates Jammu and Kashmir at its Serial No. 16, for the period with effect from 1st July, 2007 to 30th June, 2010, as ‘Active Duty*. Section 80 of the Border Security Force Act reads thus:- “When a Criminal Court or 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.” Rules 41 and 42 of the Border Security Force Rules indicate parameters for exercise or otherwise of discretion in making choice by the Authorities mentioned in Section 80 of the Act to claim custody of accused for trial by Security Force Court.
These Rules read thus:- “CHAPTER-VI CHOICE OF JURISDICTION BETWEEN SECURITY FORCE COURT AND CRIMINAL COURT 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 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 wither 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. (c) the offender can, in view of the nature of the case, be dealt with summarily under the Act. Rule 42 : Cases not to be tried by Security Force Court:- Without prejudice to the provisions of sub-rule (1) of rule 41, an offender may not be claimed for trial by a Security Force Court:- (a) where the offence is committed by him along with any other person not subject to the Act whose identity is known; or (b) where the offence is committed by him while on leave or during absence without leave.” 13.
The star issue that arises for consideration in these Revision Petitions as to whether or not the accused were on ‘Active Duty’ on 05.02.2010 at the time of the commission of offence, needs to be adverted to in the light of the provisions of the Border Security Force Act and the Rules referred to hereinabove. 14. ‘Active Duty”, is defined in Section 2 (a) of the Border Security Force Act, as follows:- “2(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.” 15. The latter part of Section 2 of the Act makes the ‘Duty’ of BSF Personnel deployed in the State of Jammu and Kashmir besides other States, mentioned in Notification of 2007, as ‘Active Duty’, regardless of the fact that the Unit to which they were attached as a member of the Force was not engaged in Operations against an enemy or operating at a picket or engaged on a patrol or other guard duty along the Borders of India. 16. In terms of the Notification, every duty of the BSF Personnel for the period with effect from 1st July, 2007 to 30th June, 2010 during the course of their deployment in any of the States/Union territories mentioned in the Notification is declared as ‘Active Duty’ regardless of the nature of Duty discharged by them. 17. The Notification, when read in the light of latter part of Section 2, therefore, demonstrates that all BSF Personnel deployed in the State of Jammu and Kashmir and other States mentioned in the Notification, during the period indicated in the Notification, would be, on ‘Active Duty”, regardless of the nature of Duty they were discharging in their capacity as member of the Force.
This is so because the emphasis in latter part of Section 2 being, on the period, to be indicated in the Notification, posting of Officers of the Border Security Force, in the States indicated therein, during the notified period, would, therefore, be a period when they would be treated as on ‘Active Duty’ for the purposes of the Border Security Force Act, unless the context of the provisions of the Act indicates otherwise. 18. The argument of petitioners learned counsel that the accused were not on ‘Active Duty’ at the time of commission of offence because the offence was not so committed in the course of performance of their duty as a member of the Force, therefore, becomes irrelevant, for, such determination may not be germane, in view of the admitted position that the accused being on ‘Duty” in the State of Jammu and Kashmir during the period indicated in Notification dated 8th August, 2007, are to be treated on ‘Active Duty’ in view of the specific Statutory provisions appearing in latter part of Section 2(1)(a) of the Border Security Force Act (refer to the highlighted portion). In view of the above findings that because of their posting in the State of Jammu and Kashmir during the period indicated in Notification of 2007, the accused were on ‘Active Duty’ there is no need to examine the nature of Duty which the accused was discharging, when, pursuant to the lawful Command of his Superior, he, after his Annual Medical Examination, was returning from Composite Hospital Humhama, when the offence is stated to have been committed and the case law cited by the petitioners’ learned counsel, referring to the provisions of Section 197 of the Code of Criminal Procedure, to urge that the offence was not committed in the discharge of official duties and the accused can not, therefore, be treated on ‘Active Duty” because all these pleas pale into insignificance in view of the finding that the accused were on ‘Active Duty’ because of the operation of Notification issued under Section 2 of the Act.
Thus having found that the accused was on ‘Active Duty’ at the time of commission of offence, the proviso/exception indicated in Section 46 of the Act would not, therefore, apply and the offence committed by the accused shall be deemed to be an offence, inter alia, against the Border Security Force Act, hence a Civil Offence in terms of Section 46 of the Act. 19. Petitioners’ learned counsel’s next contention that the Criminal Court had acted illegally in delivering custody of the accused to the Deputy Inspector General, when his demand for custody was not supported by any reasons in support of his decision to demand custody, is found without merit on perusal of the provisions of Rule 41 of the BSF Rules, which vest wide discretion in the Authorities mentioned in Section 80 to demand custody of the accused who was accused of committing a Civil Offence, in the interests of discipline, whether or not the offence was committed “in the course of the performance of Duty”. The Authorities under Section 80 are not enjoined either under the Adjustment Rules or under any law for the time being in force on the subject to spell out detailed reasons while demanding custody of the accused for trial by Security Force Court. In taking decision to claim an offender for trial by a Security Force Court, the status of the members of the Force being on ‘Active Duty’, is one of the considerations on which the custody may be claimed.
In taking decision to claim an offender for trial by a Security Force Court, the status of the members of the Force being on ‘Active Duty’, is one of the considerations on which the custody may be claimed. The only prohibition against claiming trial by the Security Force Court, as indicated in Rule 42, is as follows :- “(1) Where the offence is committed by him along with any other person not subject to the act whose identity is not known; or (2) Where the offence is committed by him while on leave or during absence without leave.” The law does not vest jurisdiction in the Criminal Courts to examine the justifiability of the decision of the Authorities mentioned in Section 80 of the Act to demand custody of the accused when he is alleged to have committed Civil Offence and all that the Magistrate is required so to do in such cases is to follow strictly the provisions of the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983 and the Criminal Courts and Border Security Force Court (Adjustment of Jurisdiction) Rules 1969, before proceeding further in the case. On receipt of the Final Report in a case where the accused was found to have committed a Civil Offence, the Magistrate, before proceeding further in the case, is required to give option to the Commanding Officer of the accused for his trial by the Security Force Court because the initial jurisdiction to try the accused vests in the Authorities under the BSF Act. The present case being not a case covered by Rule 42 of the BSF Rules, the decision taken by the DIG to demand custody of the accused who were on ‘Active Duty’ at the time of commission of offence, cannot, therefore, be faulted. 20.
The present case being not a case covered by Rule 42 of the BSF Rules, the decision taken by the DIG to demand custody of the accused who were on ‘Active Duty’ at the time of commission of offence, cannot, therefore, be faulted. 20. The petitioners’ learned counsel’s next contention that having opted not to claim the custody of accused during investigation of the case by Police, the Authorities of the Border Security Force were estopped from claiming custody of the accused, too is found untenable in view of the law laid down by Hon’ble Supreme Court of India in Som Datt Datta v. Union of India and others, reported as AIR 1969 SC 414 , where while dealing with a similar question it was held as follows:- “The rules framed by the Central Government under Section 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner have already been instituted in an ordinary criminal court having jurisdiction to try the matter and not at a stage where such proceedings have not been instituted. It is clear from the affidavits filed in the present case that the petitioner was not brought before the Magistrate and charged with the offences for which he was liable to be tried by the Court-Martial within the meaning of Rule 3 and so the situation contemplated by Rule 5 has not arisen and the requirements of that Rule are therefore not attracted. It was pointed out by Mr. Dutta that after the First Information Report was lodged at Pallavaran Police Station a copy thereof should have been sent to the Magistrate. But that does not mean that the petitioner “was brought before the Magistrate and charged with the offences” within the meaning of Rule 3. It is manifest that Rule 3, only applies to a case where the Police had completed investigation and the accused is brought before the Magistrate after submission of a charge-sheet. The provisions of this rule cannot be invoked in a case where the Police had merely started investigation against a person subject to military, naval or air force law. With regard to the holding of the inquest of the dead body of Spr.
The provisions of this rule cannot be invoked in a case where the Police had merely started investigation against a person subject to military, naval or air force law. With regard to the holding of the inquest of the dead body of Spr. Vishwanath Singh, it was pointed out by the Attorney General that Regulation 527 of the Defence Services Regulations has itself provided that in cases of unnatural death i.e. death due to suicide, violence or under suspicious circumstances information should be given under Section 174 of the Criminal Procedure Code to the Civil Authorities, and the conduct of Maj. Agarwal in sending information to the Civil Police was merely in accordance with the provisions of this particular Regulation. For these reasons, we hold that counsel for the petitioner is unable to make good his argument on this aspect of the case.” 21. All the contentions raised by learned counsel for the petitioners questioning the order passed by the learned Chief Judicial Magistrate, Srinagar, therefore, fail. 22. The order of the learned Chief Judicial Magistrate, Srinagar directing handing over the custody of the accused to the Deputy Inspector General, the Commandant of the accused and the Competent Authority under the Adjustment Rules, pursuant to the option exercised by him in terms of the Adjustment Rules, for their trial by the Security Force Court, finding that they had been alleged to have committed “Civil Offence” while on ‘Active Duty*, is, therefore, found justified suffering from no illegality or irregularity warranting interference in Revision. 23. There is, therefore, no merit in these Revision Petitions which are, accordingly, dismissed. _