JUDGMENT 1. THE judgment of the Court was as follows:- THE challenge in this application under Section 482 of the Code of Criminal Procedure is to the orders dated 27.2.2003, 26.9.2003 and 30.12.2003 passed by the learned Sub-Divisional Judicial Magistrate, Basirhat, North 24-Parganas in G.R. Case No. 23/2003 arising out of Basirhat P.S. Case. No. 9 dated 13.1.2003 under Sections 376(B)/280/ 302/ 201 of the Indian Penal Code. 2. THE petitioner herein is the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata. On 9.1.2003 at 17.00 hours a Patrol Party of B.S.F. apprehended seven Bangladeshi nationals of whom three were males, two were females and two were children at Soladana. They were kept in a room at BOP. On the same date, at about 21.10 hours, Coy Commander arrived with 53 seized cattle and 10 smugglers. THE said smugglers were kept in the same room with the Bangladeshi nationals. On the next date, the Bangladeshi nationals and the smugglers were produced before the Customs Authorities at Basirhat and their statements were recorded. On 10.1.2003 the Bangladeshi nationals were pushed back as per direction of Custom Superintendent in a boat run by one Karim Dhali, a civilian. On 13.1.2003 at around 10.10 hours, one Jayanti Bala Das, a Bangladeshi national, who had been arrested and taken into custody in connection with G.R. Case No. 23/ 2003 under Section 14 of the Foreigners Act, lodged a complaint with the police authorities alleging therein that on 9.1.2003 she along with her husband, Basudeb Das and daughter Ashima, aged about three years, were coming towards Basirhat by one Auto-rickshaw from Bangladesh border. In the way 3/4 B.S.F. Officials searched that Auto- rickshaw. On questioning, Jayanti Bala and her husband confessed that they were from Bangladesh. There were some other Bangladeshi nationals in that Auto-rickshaw. All of them were taken to Soladana Camp of B.S.F. At night one B.S.F. Officer called on her in a room and committed rape on her. All the persons apprehended as Bangladeshi nationals were subjected to torture in the B.S.F. Camp. On the next date, they were taken to Basirhat Customs Office and the Customs Officers directed to push back all of them to Bangladesh. They were boarded on a small boat for that purpose. Jayanti Bala, her husband and daughter fell down from the boat in the water. On the next date, they were taken to Basirhat Customs Office and the Customs Officers directed to push back all of them to Bangladesh. They were boarded on a small boat for that purpose. Jayanti Bala, her husband and daughter fell down from the boat in the water. They raised alarm and local people rescued Jayanti Bala and another children. On 13.1.2003 they were handed over to Basirhat Police. The husband of Jayanti Bala and their daughter could not be traced out. On the basis of the said statement of Jayanti Bala, Basirhat P.S. Case No. 9 of 2003 dated 13.1.2003 was started under Sections 376(B)/280 of the Indian Penal Code. In course of investigation, Jayanti Bala was sent in safe custody and her statement was recorded. On 22.1.2003, a dead body presumed to be that of Basudeb Das, husband of Jayanti Das, was found floating on river Ichhamati. Sections 302/201 of the Indian Penal Code was added to Section 376(B)/280 of the Indian Penal Code. One Punit Kumar, Assistant Commandant and four other B.S.F. personnel were made accused in the case. The boatman Karim Dhali was also arrested and confessional statement of Karim Dhali under Section 164 of the Code of Criminal Procedure was accorded by the learned S.D.J.M., Basirhat. On 27.2.2003 warrant of arrest against Punit Kumar, Assistant Commandant and four other B.S.F. personnel was issued on the prayer of Investigating Agency. On 5.3.2003, the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, filed an application before the learned S.D.J.M., Basirhat for transfer of the case under Section 80 of the B.S.F.. Rules. On 6.3.2003, that prayer of the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, the petitioner herein, was rejected on the ground that the prayer was premature and not only B.S.F. personnel but other civilians were made accused in the case. On 13.3.2003 an application was filed on behalf of the petitioner to recall the order of warrant of arrest against the B.S.F. personnel. By the order dated 26.9.2003 said prayer was rejected. Another application was taken out on behalf of the petitioner for recalling the order of warrant of arrest. By order dated 30.12.2003, said prayer was rejected. In the meantime, Punit Kumar Sinha preferred a Public Interest Litigation, being W.P. No. 14404 (W) of 2003, praying for some reliefs. By the order dated 26.9.2003 said prayer was rejected. Another application was taken out on behalf of the petitioner for recalling the order of warrant of arrest. By order dated 30.12.2003, said prayer was rejected. In the meantime, Punit Kumar Sinha preferred a Public Interest Litigation, being W.P. No. 14404 (W) of 2003, praying for some reliefs. The Union of India and other officers of B.S.F. were made respondents in the said writ application. Upon contested hearing of the same writ application, the said writ application was disposed of on 10.3.2004. The petitioner, i.e., the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, has challenged the aforementioned orders passed by the learned Magistrate declining to recall the order of warrant of arrest issued against the B.S.F. personnel who were made accused in the case. 3. IT is pertinent to mention here that the order dated 6.3.2003 rejecting the prayer dated 5.3.2003 has not been challenged in this revisional application. 4. MR. Razack, learned Additional Solicitor General, appearing for the petitioner, submits that it was a mistake on the part of the petitioner not to challenge the order dated 6.3.2003 whereby the prayer of the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, for transfer of Criminal Court case to the B.S.F. Court for trial was rejected. He, however, contends that the subsequent orders whereby warrant of arrest was issued and recalling of warrant of arrest was rejected, have been challenged in this revisional application. Those orders were passed consequent upon the order dated 6.3.2003. Therefore, when the matter has brought to the notice of this Revisional Court and where there is patent error in Law on the face of the record, this Court should set right the patent wrong and pass necessary order. Mr. Razack contends that Section 80 of the Border Security Force Act, 1968 leaves no room of doubt that when an offence was committed by an Army Personnel, a member of Border Security Force and the Competent Authority of B.S.F. exercised its discretion under Section 80 of the Act that the accused may be tried before the Border Security Force Court, the subsequent cognizance by the Magistrate and committal of case by him to the Sessions Court was without jurisdiction. 5. 5. 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, Sector Headquarters; Kolkata, to take a decision whether the case of the petitioner had to be tried by a Criminal Court or by the General Security Force Court. Mr. Razack continues that when an application filed by the Deputy Inspector General, Border Security Ford, Sector Headquarters, Kolkata exercising its discretion under Section 80 of the 1968 Act, the learned Magistrate left with no option but to forward the B.S.F. personnel who were made accused in the case together with all the documents of the proceedings to the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata for the purpose of instituting proceedings against the said accused B.S.F. personnel. This is the mandate of law and the learned Magistrate should not have rejected the prayer on the ground that some civilians were also made accused together the B.S.F. personnel in that case and that the application was premature. 6. MR. Mondal, learned Advocate for the opposite party/State, contends that in view of Section 475(2) of the Code of Criminal Procedure read with Section 80 of the Border Security Force Act, 1968 and Rules 3 and 4 of the Border Security Force Rules, 1969, the B.S.F. personnel ought to have been forwarded to the Deputy Inspector General, Border Security Force, together with the requisite documents for instituting the proceeding against the said accused B.S.F. personnel in the Force Court. Therefore, the subsequent orders directing issuance of warrant of arrest and rejecting the prayer for recalling the order of warrant of arrest should not have been passed by the learned Magistrate. He further submits that the Magistrate was not supposed to wait for completion of investigation and submission of report under Section 173 of the Code of Criminal Procedure in such a case. Section 80 of the Border Security Force Act, 1968 is reproduced below:- "80. Choice between Criminal Court and Security Force Court. He further submits that the Magistrate was not supposed to wait for completion of investigation and submission of report under Section 173 of the Code of Criminal Procedure in such a case. Section 80 of the Border Security Force 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." 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, naval 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, naval 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 endeavours to apprehend and secure any person accused of such offence. (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 endeavours 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." 7. 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. 8. 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. Therefore, the question comes in is whether the B.S.F. personnel who are made accused in the case while belonging to B.S.F. were in "active duty" or not at the time of commission of alleged offence. The learned Magistrate, however, did not consider this question at all. According to Mr. Razack, the facts and circumstances of the present case indicate clearly that the B.S.F. personnel who were made accused in the case of rape of Jayanti Bala Das were in 'active duty' at the relevant time of alleged commission of offence. 9. The learned Magistrate, however, did not consider this question at all. According to Mr. Razack, the facts and circumstances of the present case indicate clearly that the B.S.F. personnel who were made accused in the case of rape of Jayanti Bala Das were in 'active duty' at the relevant time of alleged commission of offence. 9. IN view of Section 47 of the 1968 Act and in pursuance of the provisions of clause (a) of sub-section (1) of Section 2 of the Act, the Gazette of India, Extraordinary dated February 4, 2002, the duty of every person referred to in Clause (a) of sub-section (1) of Section 2 serving in the States/Union Territories mentioned in the Gazette for the period with effect from the 1st January, 2002 to 30th June, 2004 are deemed to be in "active duty". The alleged incident took place in the year 2003. Therefore, all the B.S.F. personnel who were made accused in the case are deemed to be in "active duty" at the relevant point of time in view of the Gazette notification mentioned above. 10. 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 commending officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for the purpose of being tried by a Court-martial. In the instant case, the officials of the B.S.F. who have been made accused in the ease, were not brought before the learned Magistrate. But, the petition dated 5.3.2003 taken out by the petitioner herein, i.e., the D.I.G., Border Security Force, Sector Headquarters, Kolkata, leaves no room of doubt that the said accused persons were detained in B.S.F.'s custody on and from 10th March, 2003. But, the petition dated 5.3.2003 taken out by the petitioner herein, i.e., the D.I.G., Border Security Force, Sector Headquarters, Kolkata, leaves no room of doubt that the said accused persons were detained in B.S.F.'s custody on and from 10th March, 2003. The petition filed by the present petitioner for the purpose of recalling of the order of warrant of arrest issued against the five B.S.F. personnel also discloses that all those five B.S.F. personnel were arrested and they were taken into the custody of B.S.F. at Tagorevilla, Kolkata Headquarters till date. That being the fact, the learned Court was not supposed to wait for a report of the Investigating Officer under Section 173 of the Code of Criminal Procedure. While offences alleged to have been committed by the B.S.F. personnel who were made accused in the case while in "active duty" in view of Section 47 of 1968 Act and the Gazette notification, mentioned above, and were already in custody of the B.S.F., the learned Magistrate ought to have acted according to Section 475 of the Code of Criminal Procedure read with Section 80 of the Border Security Force Act, 1968 and passed necessary order so that the petitioner may try them in the B.S.F. Court/Court martial for the offence alleged especially when the D.I.G.,.B.S.F., Koikata Unit expressed its discretion to do so. 11. ACCORDINGLY, the warrant of arrest issued by the learned Magistrate against the five B.S.F. personnel be recalled so far as they are connected with this case. The petitioner, Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata unit has taken them in custody already. He should prosecute them in the B.S.F. Court for their trial for committing alleged offences. The case against other civilians will be proceeded with in accordance with law in the Court of learned Magistrate at Basirhat. The learned Magistrate is directed also to send copies of ail documents of the case together with summary of the case to the D.I.G., B.S.F., Kolkata Unit. 12. WITH the aforesaid directions, this revisional application is disposed of. Interim order, if any, stands vacated. 13. THERE will, however, be no order as to costs. Let urgent photo-stat certified copy of this order, if applied for, be given to the learned Advocates for the parties upon compliance of necessary formalities.