JUDGMENT : Heard Mr. B. Lalramenga, learned counsel for the petitioner and Ms. Zairemsangpuii, learned CGC for the respondents Union of India. [2] By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged (i) the impugned Order dated 07.12.2018 passed by the General Security Force Court (GSFC), by which he has been found to be guilty of the charge punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), (ii) the impugned confirmation Order dated 06.02.2019(Annexure-9), by which the pre-confirmation petition dated 12.12.2018 submitted by the petitioner against the finding dated 7.12.2018 was rejected and the findings was confirmed and (iii) the Order dated 01.03.2019 (Annexure-10) by which the petitioner on being found guilty under Section 10 of the POCSO Act was sentenced to suffer imprisonment for 5 years and also dismissed from service. [3] Brief facts of the case is that the petitioner was appointed as a Constable in the Border Security Force (BSF) on 30.04.1999 and was working as such till he was punished and dismissed from service. On 06.03.2018, one girl namely, Suchana Chakma aged about 12 years, a resident of Tablabagh, Lunglei lodged a complaint against the petitioner before the Commandant 1st Bn, BSF, Melteram, Lunglei alleging that the petitioner molested her by forcibly touching her breast. Pursuant to the complaint, an inquiry was conducted by the Assistant Commandant, 1st Bn, BSF and he submitted his report to the Commandant, 1st Bn, BSF recommending the initiation of strict action against the petitioner. The Commandant, 1st Bn, BSF instead of taking necessary action at his level forwarded the detailed report to the higher authority i.e. Inspector General of BSF and the said authority referred the matter to the GSFC for trial. Accordingly, a charge sheet was issued on 11.11.2018 and on the same date a Defending Officer under the provision of Rule 63(2) of the BSF Rules, 1969 (BSF Rules) was appointed and also the Members, Waiting Members, Law Officer and Prosecutor for the GSFC were appointed as well. [4] The GSFC then proceeded to try the case against the petitioner and in the process, prosecution witnesses were examined, cross examined and reexamined. Consequently, a finding was arrived at on 17.12.2018, by which the petitioner was found to be guilty of the charge. [4] The GSFC then proceeded to try the case against the petitioner and in the process, prosecution witnesses were examined, cross examined and reexamined. Consequently, a finding was arrived at on 17.12.2018, by which the petitioner was found to be guilty of the charge. Although, the petitioner submitted a pre-confirmation petition against the finding on 12.12.2018 but the same was rejected on 06.02.2019 by the Confirming Authority and consequently, vide the impugned Order dated 01.03.2019, the petitioner was sentenced to suffer imprisonment for 5 years and he was dismissed from service as well. Aggrieved, the petitioner is before this Court. [5] Mr. B. Lalramenga, learned counsel for the petitioner submits that although the petitioner did not prefer an appeal against the finding or sentence of the GSFC in terms of Section 117(2) of the BSF Act, the writ petition is maintainable and can be entertained by this Court in exercise of Article 226 of the Constitution of India. In this connection, he relies upon the decision of the Division Bench of this Court in Director General, Border Security Force & Others Vs. Iboton Singh (KH), 2007(1) GLT 903. [6] The learned counsel submits that as per Section 48 of the BSF Act, punishment may be inflicted in respect of offences committed by persons belonging to the BSF subject to the BSF Act and convicted by the GSFC. In the present case, the impugned finding dated 17.12.2018, the rejection of the pre-confirmation petition vide Order dated 06.02.2019 and the order of Sentence dated 01.03.2019 only states that the petitioner is found guilty of the charged offence. Therefore, as he has not been convicted, there is no question of imposing sentence upon him. In this connection, the learned counsel relies upon the case of Rajib Choudhury Vs. Union of India & Others, 2015 (1) GLT 185. [7] The learned counsel further submits that as per Section 28 of the POCSO Act, the State Government in consultation with the Chief Justice of the High Court by a notification in the Official Gazette can designate a Court of Session for each district to be a Special Court to try the offences under the POCSO Act. [7] The learned counsel further submits that as per Section 28 of the POCSO Act, the State Government in consultation with the Chief Justice of the High Court by a notification in the Official Gazette can designate a Court of Session for each district to be a Special Court to try the offences under the POCSO Act. In the present case, the charge made against the petitioner is under Section 10 of the POCSO Act and since there is no designation of the GSFC as a Special Court, the petitioner could not have been tried by the said Court for an offence under the POCSO Act. In this connection, the learned counsel has relied upon the case of Alakh Alok Srivastava Vs. Union of India & Others, (2018) 17 SCC 291. [8] Mr. B. Lalramenga, the learned counsel lastly submits that the petitioner should be given the benefit of doubt since there were no eye witnesses to the alleged crime. He submits that the standard of proof for establishing the charge for a criminal offence is proof beyond reasonable doubt. It is a settled law that the case of the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. In this connection, he relies upon the case of Nanhar & Others Vs. State of Haryana, (2010) 11 SCC 423 . The learned counsel thus submits that under the facts and circumstances, the impugned penalty imposed upon the petitioner cannot be sustained and should be set aside and the petitioner be reinstated back into service. [9] Ms. Zairemsangpuii, the learned CGC, on the other hand submits that prior to the GSFC, a Court of Inquiry was conducted against the petitioner on the written complaint submitted by Ms. Suchana Chakma. The Inquiry revealed that the petitioner had indeed molested the girl and therefore, he was liable to be proceeded with under the POCSO Act. The Commandant, 1st Bn, BSF instead of conducting and proceeding under his authority decided to refer the matter to higher authorities and accordingly, the GSFC was convened to try the petitioner for the alleged offence. The learned CGC submits that the entire proceedings conducted by the GSFC was as per the relevant provisions of the BSF Act and the petitioner was given due opportunity to cross examine the prosecution witnesses and to defend himself. The learned CGC submits that the entire proceedings conducted by the GSFC was as per the relevant provisions of the BSF Act and the petitioner was given due opportunity to cross examine the prosecution witnesses and to defend himself. Therefore, the writ petition has no merit and the same should be dismissed. The learned CGC has also produced the relevant records for the perusal of this Court. [10] I have heard the submissions made by the learned counsels for the rival parties and I have perused the material available on record including the record produced by the learned CGC. [11] Firstly, coming to the issue of maintainability of the writ petition, it may be seen that it is not the case of the respondent Union of India that the writ petition is not maintainable for not exhausting the alternative remedy available to the petitioner. No doubt, Section 117 (2) of the BSF Act provides that any person who considers himself aggrieved by finding or sentence of any GSFC which has been confirmed, can present a petition to the Central Government, the Director General, BSF or any Prescribed Officer superior in command to the one who have confirmed such a findings or sentence. But the fact remains that the power of this Court under Article 226 of the Constitution of India is an extra ordinary power and that existence of an alternative remedy by itself may not be a bar to entertain a writ petition. Although, it may be a good ground to reject the writ petition at the outset when it was moved before the Court but after pleadings have been exchanged by the parties, it would not be fair to adopt a technical approach at this stage. [12] A division Bench of this Court in Director General, Border Security Force & Others Vs. Iboton Singh (KH),(Supra) held that there is no limitation on the part of the High Court under the Article 226 of the Constitution of India and the High Court can definitely interfere with the findings of the GSFC if it finds that the finding reached by the GSFC is perverse and contrary to the provisions of law or such infliction in the opinion of the High Court has led to failure of justice. Therefore, on and overall consideration, I am not inclined to dismissed the writ petition merely because the petitioner did not invoke Section 117(2) of the BSF Act. [13] The next point to be considered is as to whether the GSFC proceeding is vitiated since Chapter VII of the BSF Rules was followed instead of Chapter IX of the same Rules which provides for procedure for Security Force Court. To substantiate his submission, the learned counsel for the petitioner has drawn the attention of this Court to the recorded statement of the petitioner annexed to the writ petition as annexure 7. He submits that in the said annexure, it was mentioned that there was compliance of Rule 48(4) of the BSF Rules. As Rules 48 falls under Chapter VII of the BSF Rules, it is clear that the same had been adopted by the GSFC during the trial. However, a perusal of annexure 7 would reveal that the same was recorded and duly signed by the signatories including the petitioner on 12.06.2018 while the charge sheet, appointment of the Defending Officer, appointment of the Members of the GSFC, waiting Members, Law Officers and Prosecutor was made on 11.11.2018 as can be seen from Annexures 3, 4 and 5 respectively in the writ petition itself. This would mean that the statement of the accused at annexure 7 of the writ petition was recorded during the time of inquiry conducted by the One Man Court of Inquiry. Although Chapter XIV of the BSF Rules deals with Court of Inquiry, the quoting of Rule 48(4) of the BSF Rules in the proceeding of the One Man Court of Inquiry by itself in my considered opinion will have no adverse impact on the case of the prosecution. Further, from a perusal of the records produced by the learned CGC, it can be plainly seen that after the GSFC was constituted, a full fledged trial was held on the charge level against the petitioner, independent of the inquiry held by the One Man Court of Inquiry. As such, I do not find force in the submission of the learned counsel for the petitioner in this regard. As such, I do not find force in the submission of the learned counsel for the petitioner in this regard. [14] The further point to be considered from the argument advanced by the learned counsel for the petitioner is that the GSFC having not been designated as a Special Court under Section 28 of the POCSO Act, the GSFC could not have tried the petitioner for an offence alleged to have committed by him under the POCSO Act. It is no doubt true that Special Court are to be designated by the State Government by way of a notification in the Official Gazette after consulting the Chief Justice of the High Court for the purpose of providing speedy trial for offences committed under the POCSO Act but at the same time, the POCSO Act, no where provides that it is only the designated Special Courts, authorized to try offences committed under the POCSO Act. It has to be seen that Section 46 of the BSF Act provides for civil offences which are to be tried by Special Force Court. On conviction of the accused person, he can be punished for the offence which is punishable under any law in force in India. Further, the BSF Act is a self contained Code or statute meant to ensure that the standard of efficiency and discipline of the force are of a very high order. Moreover, Section 80 provides that when a Criminal Court and a Security Force Court each have 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. In the present case, it was decided by the competent authority that the petitioner be tried by the GSFC, as was constituted and therefore, in my considered opinion, the GSFC has the jurisdiction to try a member of the BSF organization for an offence committed under the POCSO Act. [15] Finally, coming to the contention of the learned counsel for the petitioner that the petitioner upon being found guilty was not convicted by the GSFC and therefore, the ultimate penalty imposed upon him cannot be sustained. [15] Finally, coming to the contention of the learned counsel for the petitioner that the petitioner upon being found guilty was not convicted by the GSFC and therefore, the ultimate penalty imposed upon him cannot be sustained. From a perusal of the relevant records produced by the learned CGC, it can be seen that the announcement of finding against the petitioner was recorded on 07.12.2018, where he was found guilty of the charge. The impugned Order dated 01.03.2019 by which the petitioner was sentenced to suffer imprisonment for 5 years and was also dismissed from service also states that the petitioner was sentenced as such on being found guilty of the charge made against him under Section 10 of the POCSO Act. [16] In this connection, it may be seen that a co-ordinate Bench of this Court in Rajib Choudhury Vs. Union of India & Others (Supra), in the given facts of that case which is similar and if not identical to the instant case at paragraph Nos. 30 & 34 held as follows:- “30. This now leads to the important question as to what is conviction as the word conviction has assumed critical importance since without conviction there can be no punishment. What then is conviction? "Conviction" has been defined in the Black's Law Dictionary, Sixth Edition as the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged. It is the final judgment on a verdict or finding of guilt but does not include a final judgment which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory. It is that stage of a criminal proceeding where the issue of guilt is finally determined. The word "verdict" is derived from the Latin word "veredictum" which means a true declaration. It is the formal decision or finding. Conviction therefore would mean the outcome of a criminal prosecution which concludes in a judgment that the accused is guilty of the offence for which he was charged. It is that stage of a criminal proceeding where the question of guilt of the accused is finally ascertained. Thus, conviction is the final determination of guilt of the accused by the competent Court. In other words, conviction is the formal and final declaration/finding of guilt of the accused. It is that stage of a criminal proceeding where the question of guilt of the accused is finally ascertained. Thus, conviction is the final determination of guilt of the accused by the competent Court. In other words, conviction is the formal and final declaration/finding of guilt of the accused. All deliberations preceding such formal and final determination/declaration of guilt would be the opinion or view of the Court. Such opinion or view must crystallize into a formal and final determination/declaration of guilt which would then be legally construed as conviction. 31. ………… 32. ………… 33. ………… 34. Two things are quite apparent from the case record. Firstly, there is no order of conviction of the petitioner by the Summary Security Force Court. Though finding has been recorded that the Court was of the opinion that the accused (petitioner) was guilty of the charge, such an opinion did not crystallize into an order of conviction. There was no order of conviction. After all, an opinion is an opinion. An opinion is not the final, formal and conclusive determination of guilt. Therefore, an opinion cannot be equated with a conviction. This though appears to be a technical point, it has a significant bearing because as already discussed above, it is based on the conviction that punishments as prescribed in sub-section (1) of section 48 of the B.S.F. Act are imposed. In the absence of conviction, any punishment imposed under section 48 of the B.S.F. Act would be illegal and untenable.” [17] Upon coming to a finding as abstracted above, this Court had set aside and quashed the impugned order of dismissal from service of the BSF personnel. In the present case as well, having regard to the facts involved there is no escape from the conclusion that the ratio laid down is applicable unless of course, this Court prefers to differ and which then would require the matter to be referred to a larger Bench. However, the same will not be required as I am in respectful agreement with what has been held in Rajib Choudhury Vs. Union of India & Others (Supra). [18] In the result, for the above reason, the impugned Orders/ findings dated 07.12.2018, 06.02.2019 and 01.03.2019 are found to be not sustainable and they are accordingly set aside. However, the same will not be required as I am in respectful agreement with what has been held in Rajib Choudhury Vs. Union of India & Others (Supra). [18] In the result, for the above reason, the impugned Orders/ findings dated 07.12.2018, 06.02.2019 and 01.03.2019 are found to be not sustainable and they are accordingly set aside. The respondents are hereby directed to reinstate the petitioner within a period of one month from the date of receipt of a certified copy of this order. As for the arrear salary, since the petitioner did not perform any work during his dismissal, he will not be entitled to any back wages. No cost.