Jammu & Kashmir High Court
Eyazul Haque vs Union Of India Through Home on 19 November, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 687/2012
c/w
SWP No. 2456/2011
SWP No. 2457/2011
Reserved on : 15.10.2024
Pronounced on : 19.11.2024
Eyazul Haque, Ex. HC No. .... Petitioner/Appellant(s)
800029320
S/o Late Naimud-din
R/o Village
Bordaulguri P.O Sipajlar Tehsil
Mongaldai
District Darrong (Assam)
Through:- Mrs. Surinder. Kour, Sr. Advocate
with
Ms. Manpreet Kour, Advocate
V/s
1. Union of India through Home
Secretary, Ministry of Home Affairs,
North Block, Government of India,
New Delhi.
2. Director General, Border Security
Force CGO Complex, Lodhi
Road New Delhi.
3.Inspector General of Border Security Force,
Frontier Head Quarters
(Pers/Dte/Law Dte), Paloura Camp, Jammu.
4. Deputy Inspector General of Border Security Force,
Sector Head Quarter,
BSF, Rajouri/Poonch.
5. Commandant, BSF TAG
Headquarter, 112 Bn.
BSF C/o 56 APO..
....Respondents
.
Through:- Mr. Suneel Malhotra, CGSC
2 SWP Nos. 687/12, 2456/11 & 2457/11
CORAM : HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. As all the three writ petitions arise out of a common issue, they are being disposed of by way of this common order/judgment. 2 In all these three cases, the petitioners have approached this Court under Article 226 of the Constitution of India seeking quashment of orders passed by respondent No.5-Commandant, 112 BN BSF, whose details are given below:
Writ petition Order No. and Sentence
No. date Awarded
SWP No. Ett/112 (a) to suffer simple imprisonment
6872012 BN/SSFC-HC for 12
Eyazul Haque months in Civil Prison and, (b)
/2011/11552-76 to be dismissed from service
dated 20.09.2011
SWP Ett/112 (a) to suffer simple imprisonment
No.2456/2011 BN/SSFC-HC H for 12months in Civil Prison
P Bhatt/ and, (b) to be dismissed from
2011/11310-33 service
dated 17.09.2011
SWP No. Ett/112 (a) to suffer simple imprisonment
2457/2011 BN/SSFC-CT for 12months in Civil Prison
B.K Sampang/ and, (b) to be dismissed from
2011/10209-25 service
dated 08.09.2011
3. In SWP No. 687/2012, the petitioner has done Matric and was appointed as Constable on 20.12.1980 in the Border Security Force (BSF) and allotted no.800029320and after having undergone training at BSF Training Center Hazaribagh (Bihar),he remained posted in 93 Bn. BSF C.C.Pur (Manipur) with effect from 1981 to 1982, then remained posted in 93 Bn. BSF Sooma Nagar(West Bengal) with effect from 1983 to 1986, 93 Bn. BSF Mandi Mandir Poonch (J&K) with effect from 1987 to 1989. The 3 SWP Nos. 687/12, 2456/11 & 2457/11 petitioner was promoted to the post of L/Naik on 10.5.1990. The petitioner remained posted in 93 Bn. BSF Jalalabad (Punjab) with effect from 1990 to 1992, 112 Bn. BSF Nagaland Satokha in 1992, 112 Bn. Nagaland with effect from 1993 to 1999, 112 Bn BSF Barpett (Assam) in 1999 then Pnbari (Assam) up to 2003, 112 Bn. BSF Sopore (J&K) with effect from 2003 to 2006, 112 Bn. BSF Samba(J&K) with effect from 2006 to 2009, 112 Bn. BSF Kalal(J&K)in 2009, 112 Bn. BSF Hissae (Harayana) with effect from 2009 to 2010, 112 Bn. BSF Akhnoor with effect from 2010 to 2011 and in 112 Bn BSF Mandi Mandir(J&K) with effect from July 2011 to till date. The petitioner was promoted to the post of Naik on 15.8.1992 and has qualified the Course for promotion to the post of Sub Inspector. He was selected for collective training and sent for training to Dhublia Rear Headquarter at West. After completion of training, the petitioner was further deployed at BOP Churiyantpur District Malda with effect from June 2005 to December 2005.The petitioner was promoted to the post of Head Constable on 16.7.1997. During his posting at Mandi, charge was framed against him under Section 46 of the BSF Act, 1968, however according to petitioner he was informed about these proceedings by the concerned authorities. The respondents have issued an order dated 22.1.2011 by which the respondents framed charge sheet directly under Section 46 of BSF Act, 1968 read with Section 13(e) of Prevention of Corruption Act. The allegations against the petitioner were that while deployed at BOP Sukhdevpur during October 2005 to December 2005 he remitted bank draft in favour of Mr. Afiruddin Ahmed and Mr. Farug Ahmed of the amount disproportionate to his known source of income and for which he could not satisfactorily account for.
4 SWP Nos. 687/12, 2456/11 & 2457/11
4. It is stated that without conducting any enquiry as required under the provisions of BSF Act and Rules, respondent No. 5 issued the impugned Order No. Estt/112 Bn/SSFC-HC Eyazul Haque /2011/11552-76 dated 20.09.2011,mentioning therein that No. 800029320 HC Eyazul Haque (petitioner) of 112 Bn. BSF has been tried by SSFC held on 15 th and 20th September, 2011 at Tac HQ 112 Bn BSF C/o 56 APO vide 112 Bn. BSF Order No. Estt/112 Bn/Order(SSFC) 2011/11009-15 dated 14-9-2011 for the office under Section 46 of BSF Act- 1968 read with Section 13(e) of Prevention of Corruption Act and it is also mentioned that the petitioner has been found guilty of the charge and awarded sentence by the Court: (a) to suffer simple imprisonment for 12 months in Civil Prison and, (b) to be dismissed from service and it is mentioned that the dismissal from service shall take effect from the date of the committal to the Civil prison.
5. It is further stated that the petitioner remained in Quarter Guard with effect from 15th September 2011 to 8th November, 2011 and thereafter, he was sent to District Jail, Poonch on 18th November, 2011 and presently the petitioner is lodged in District Jail, Poonch.
6. Learned senior counsel for the petitioners submits that the respondents have framed charges against the petitioners under Section 46 of the BSF Rules 1968 read with Section 13(e) of the Prevention of Corruption Act, while under Rule 46, subject to the provisions of Section 46, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charge therewith under this Section shall be liable to be tried by a Security Force Court and, on conviction, be punishable (a) if 5 SWP Nos. 687/12, 2456/11 & 2457/11 the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
7. Under Section 13(e) of the Prevention of Corruption Act, A public servant is said to commit the offence of criminal misconduct, if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
8. Learned senior counsel for the petitioner further submits that the petitioner has not done any act for which the petitioner has been punished under these Rules. The petitioner has not taken any bribe from anyone, but the petitioner has sent the money received from one Padam Lochan Nath who had taken loan from him. The petitioner has not accumulated any property which is disproportionate. The respondent has done the proceedings in the absence of the petitioner and imposed two punishments (i) simple imprisonment for 12 months in civil jail and (ii) dismissal from service. The respondents have not complied with the provisions of BSF Act and Rules and deprived the petitioner from his service without any reasonable cause and reasons.
6 SWP Nos. 687/12, 2456/11 & 2457/11
9. The respondents in their objections have resisted and controverted the contentions raised and grounds urged in the petition, inter alia, on the premise that no fundamental or statutory right of the petitioner has been violated. It is stated that during the period from July 2005 to Dec 2005 'G' Coy (Trg Coy) of the unit was deployed at BOP Churi Anantpur, BOP Sukhdevpur and BOP Sabdalpur as a part of Adhoc, SB-2 Bn BSF on Indo Bangladesh Border under South Bengal Ftr HQ (Calcutta) and while posting there during the said period petitioner had remitted nine Bank Drafts amounting to Rs.1,78,000/- which were disproportionate to his known source of income, for which the petitioner could not satisfactorily account for. The further stand taken by the respondents in their objections is that a Staff Court of Inquiry was ordered by SHQ BSF Indreshwar Nagar, vide order No. Estt/SHQ-IND/D-112/09/17996-18001dated 21.12.2009 to find out the identity of personnel of 112 Bn BSF, whowere involved in remitting the Bank Drafts and also to find out whether such amounts were beyond their known sources of income, while their Coy was deployed under South Bengal Frontier, subsequently, the inquiry was completed.
10. They have further averred in the objections that as per the finding and opinion of the SCOI, petitioner was blamed for remitting Bank Drafts amounting to Rs.1,78,000/-, disproportionate to his known source of income and inquiry officer recommended strict disciplinary action in the matter against the petitioner. Thereafter, petitioner was heard by his Commandant under Rule 45 of BSF Rules 1969on charge under Section 46 of BSF Act read with Section 13 (e) of Prevention of Corruption Act. After hearing the charge, the Commandant ordered Record of Evidence against 7 SWP Nos. 687/12, 2456/11 & 2457/11 the petitioner under Section 46 of BSF Act 1968read with Section 13 (e) of Prevention of Corruption Act 1988 and based on the evidence in the ROE, prima facie case was established against the petitioner. The petitioner was tried by Summary Security Force Court w. e. f. 15th Sept 2011 to 20thSept 2011 and after considering the evidence on record found him guilty of remitting Bank Drafts amounting to Rs.1,78,000/- and awarded sentences
(a) to suffer imprisonment for 12 months in Civil Prison and (b) to be dismissed from service. It is stated that further proceedings were countersigned by the DIG BSF SHQ, Rajouri. The petitioner was committed to prison, Poonch, on proper committed warrant under Rule 163 of BSF Rule 1969 on 28.02.2012. It is stated that Smt. Wahida Begum wife of the petitioner has submitted an application dated 03.10.11addressed to 10 BSF, Ftr HQ Jammu for reinstatement of her husband. 10Ftr HQ BSF, Jammu, after carefully considering all the points, facts and circumstances of the case, has rejected the same vide order dated 16.12.2011.
11. In SWP No. 2456/2011, the petitioner was appointed as Constable on 15.5.1990 in the Border Security Force (BSF) and allotted no. 901935991. He underwent training at BSF Training Center C. C. Pur Manipur. Thereafter, he remained posted in 193 Bn. BSF Panwari Assam, then remained posted in 193 Bn. BSF Mawpat Shillong Meghalaya w.e.f. 1991 to 1993, 193 Bn. BSF Umpling Shillong Meghalaya with effect from 1993 to 1997, 112 Bn. BSF Nagaland with effect fi-om July 1997 to 1999(on transfer basis), 112 Bn. BSF Barpetta Assam with effect from 1999 to 2000, 112 Bn. Panwari Assam with effect from 2000 to 2003, 112 Bn BSF Sopore (Srinagar J&K) with effect from 2003 to 2006. The petitioner qualified the test for promotion to the post of Head Constable in 8 SWP Nos. 687/12, 2456/11 & 2457/11 2004. He was selected for collective training and sent for training to Dhublia at Bengal for two months with effect from May 2005 to July 2005. After completion of training, the petitioner was further deployed at BOP Churiyantpur District Malda Bengal for five months.
12. It is stated that during the posting of petitioner at Churiyantpur District Nalanda Bengal, charge was framed against the petitioner under Section 46 of the BSF Act, 1968 and according to the petitioner he was informed about these proceedings by the concerned authorities. The petitioner was again transferred to 112 Bn BSF Samba, Jammu and remained posted there with effect from 2006 to 2009. At this place, the Vigilance Organization had communicated a message regarding the charge to the Unit concerned in October, 2008. The petitioner was totally unaware about the said offence. He was again transferred to 112 Bn. BSF Bidda (Reasi), Jammu and remained posted there with effect from April 2009 to October, 2009 and then again transferred to 112 Bn BSF Hisar (Haryana) and remained posted there with effect from October 2009 to January, 2010. Thereafter the petitioner was again transferred to 112 Bn BSF Akhnoor and remained there with effect from January 2010 to June 2010 and from June 2011 the petitioner is posted in 112 Bn. BSF Mandi (Poonch). The petitioner was promoted as Head Constable in the year 2004.
13. Learned senior counsel for the petitioner submits that vide order dated 29.1.2011, the respondents framed charge sheet directly under Section 46 of BSF Act, 1968 read with Section 13 (e)of Prevention of Corruption Act and the allegations against the petitioner was that he while deployed at BOP Sukhdevpur during December 2005 remitted bank draft in 9 SWP Nos. 687/12, 2456/11 & 2457/11 favour of Mrs. Leena Sampang (Wife) and Mr. Surjit Rai (Neighbour) for an amount disproportionate to his known source of income and for which he could not satisfactorily account for. It is stated that without conducting enquiry as required under the provisions of BSF Act and Rules, respondent No.5 issued order No. Estt/112 Bn/SSFC-CT B.K. Sampang72011/10209- 25 dated 08.09.2011 mentioning therein that petitioner- No. 901935991 Const B. K. Sampang of 112 Bn. BSF was tried by SSFC held on 8th September, 2011 at Tac HQ 112 Bn BSF C/o 56 APO vide 112 Bn. BSF Order No. Estt/112 Bn/Order(SSFC) 2011/10051-58 dated 06 September 2011 for the office under Section 46 of BSF Act 1968 read with Section 13
(e) of Prevention of Corruption Act and it is also mentioned that the petitioner has been found guilty of the charge and awarded sentence by the Court (a) to suffer simple imprisonment for 12 months in Civil Prison and,
(b) to be dismissed from service and it is mentioned that the dismissal from service shall take effect from the date of the committal to the Civil prison. The petitioner remained in Quarter Guard with effect from 8th September 2011 to October 30, 2011 and thereafter, the petitioner was sent to District Jail, Poonch, on October 31, 2011 and presently the petitioner is lodged in District Jail, Poonch. It is further stated that the respondents have not complied with the provisions of BSF Act and Rules and deprived the petitioner from his service without any reasonable cause and reasons.
14. The stand taken by the respondents in their objections is that the petitioner was enrolled in BSF on 15.5.1990 as Constable (GD) and during the period from July 2005to Dec 2005 while deployed at BOP Churi Anantpur, BOP Sukhdevpur and BOP Sabdalpur as a part of Adhoc SB-2 Bn BSF on Indo Bangladesh Border under South Bengal Ftr HQ (Calcutta) 10 SWP Nos. 687/12, 2456/11 & 2457/11 he had remitted nine bank drafts amounting to Rs. 2,35,000/- disproportionate to his known source of income, for which he could not satisfactorily account for.
15. It is further averred in the objections that a Staff Court of Inquiry was ordered by SHQ BSF Indreshwar Nagar, vide order No. Estt/SHQ-lnd/D-112/09/17996-18001 dated21.12.2009 to find out the identity of personnel of 112 Bn BSF whowere involved in remitting the bank drafts and also to find out whether DIG BSF such amount were beyond their known sources of income, while theirCoy were deployed under South Bengal Frontiers and as per finding and opinion of the SCOI, petitioner was blamed for remitting bank drafts amounting to Rs.2,35,000/- , disproportionate to his known source of income and inquiry officer recommended strict disciplinary action in the matter against the petitioner. Thereafter, the petitioner was heard by his Commandant under Rule 45 of BSF Rules1969 on charge under Section 46 read with section 13 (e) of Corruption Act. After hearing, the Commandant ordered Record of Evidence against the petitioner on the charge u/s 46 of BSF Act 1968 read with section 13 (e) of Corruption Act. Based on the evidence in the ROE, prima facie case was established against the petitioner and he was triedby Summary Security Force Court on 08 Sept' 2011. The Court after considering the evidence on record found him guilty for remitting Bank drafts amounting to Rs.2.15 lakhs to self and other persons beyond his source of income and Court awarded the aforesaid sentences.
16. In SWP No. 2457/2011, the petitioner was appointed as Constable on 1.4.1988 in the Border Security Force (BSF) and allotted no. 11 SWP Nos. 687/12, 2456/11 & 2457/11 889440962. He underwent training at BSF Training Center Jodhpur Rajasthan. After undergoing training, he remained posted 37 Bn. BSF Jasalmayer Rajasthan, then remained posted in 37 Bn. BSF Meghalaya with effect from 1989 to 1993, 37 Bn. BSF Ferozpur Jalalabad (Punjab) with effect from 1993 to 1994, 37 Bn. BSF Srinagar (Nishat Bagh) with effect from 1994 to 1997, 37 Bn. BSF Shillong Meghalaya with effect from 1997 to 2000, 37 Bn. Playal Manipur with effect from 2000 to 2002, 112 Bn BSF Panbari Assam with effect from 2002 to 2003 on the basis of transfer from Bn from 37 to 112, 112 Bn BSF Sopore (Srinagar) with effect from 2003 to 2006. The petitioner was selected for collective training and sent for training to Dhululia at Bengal for two months with effect from May 2005 to July 2005. After completion of training, the petitioner was further deployed at BOP Churiyantpur District Nalanda Bengal for five months.
17. It is stated that during the posting of petitioner at Churiyantpur District Nalanda Bengal, charge was framed against him under Section 46 of the BSF Act, 1968 without informing him about these proceedings by the concerned authorities. The petitioner was again transferred to 112 Bn BSF Samba, Jammu where he remained posted with effect from 2006 to 2009. At this place, the Vigilance Organization had communicated a message regarding the charge to the Unit concerned in October, 2008, whereas, according to petitioner he was unaware about the offence. The petitioner was again transferred to 112 Bn. BSF Bidda (Reasi), Jammu and remained posted there with effect from April 2009 to October, 2009 and then again transferred to 112 Bn BSF Hisar (Haryana) and remained posted there with effect from October 2009 to January, 2010. Thereafter the 12 SWP Nos. 687/12, 2456/11 & 2457/11 petitioner was again transferred to 112 Bn BSF Akhnoor and remained there with effect from January 2010 to June 2010.
18. Learned senior counsel for the petitioner submits that respondents vide order dated 14.2.2011 have framed charge sheet directly under Section 46 of BSF Act, 1968 read with Section 13 (e) of Prevention of Corruption Act on the allegations against the petitioner while deployed at BOP Churyantpur, BOP Sukhdevpur and BOP Sabdapur during June 2005 to December 2005 remitted bank draft in favour of Sh. Shiv Prasad Bhatt (Brother) of the amount disproportionate to his known source of income and for which he could not satisfactory account for. It is stated that Respondent No.5 without conducting any enquiry vide order No. Estt/112 Bn/SSFC-HC HP Bhatt /2011/11310-33 dated 17.09.2011 by which it is mentioned that No. 889440962 HC Hari Prasad Bhatt (petitioner) of 112 Bn. BSF has been tried by SSFC held on 10 th and 17th September, 2011 at Tac HQ 112 Bn BSF C/o 56 APO vide 112 Bn. BSF Order No. 26 Estt/112 Bn/Order(SSFC) 2011/10251-57 dated 09 September 2011 for the offence under Section 46 of BSF Act- 1968 read with Section 13(e) of Prevention of Corruption Act and it is also mentioned that the petitioner has been found guilty of the charge and awarded sentence by the Court (a) to suffer simple imprisonment for 12 months in Civil Prison and, (b) to be dismissed from service and it is mentioned that the dismissal from service shall take effect from the date of the committal to the Civil prison.
19. Learned senior counsel for the petitioner further submits that petitioner was sent to District Jail, Poonch on 17th September, 2011. The respondents have framed charges against him under Section 46 of the BSF 13 SWP Nos. 687/12, 2456/11 & 2457/11 Rules 1968 read with Section 13(e) of the Prevention of Corruption Act, while under Rule 46, subject to the provisions of Section 46, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against the Act and, if charge therewith under this Section shall be liable to be tried by a Security Force Court and, on conviction, be punishable (a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
20. It is stated that the petitioner has not taken any bribe from anyone, but he had sent the money received from his relative Sonu Sharma to his brother Shiv Prasad for the marriage of daughter of his brother. The petitioner has not accumulated any property which is disproportionate. The respondents have done the proceedings in the absence of the petitioner and imposed two punishments (i) simple imprisonment for 12 months in civil jail and (ii) dismissal from service. The respondents have not complied with the provisions of BSF Act and Rules and deprived the petitioner from his service without any reasonable cause and reasons.
21. The respondents in their objections have resisted the petition .It is averred in the objections that petitioner was enrolled in BSF on 01.04.1988 as CT (GD). After serving in various BSF Units/HQrs, he joined 112 Bn BSF on 05.08.2002. It is stated that during July 2005 to Dec 14 SWP Nos. 687/12, 2456/11 & 2457/11 2005 'G' Coy (Trg Coy) of the unit was deployed at BOP Churi Anantpur, BOP Sukhdevpur and BOP Sabdalpur as a part of Adhoc SB-2 Bn BSF on Indo Bangladesh Border under South Bengal Ftr HQ (Calcutta) and while posting there during the said period he had remitted thirteen bank drafts amounting to Rs.3,13,000/- disproportionate to his known source of income, for which the petitioner could not satisfactorily account for. A staff Court of Inquiry was ordered by SHQ BSF Indreshwar Nagar, vide order No.Estt/SHQ-IND/D- 112/09/17996-18001 dated 21.12.2009 to find out the identity of personnels of 112 Bn BSF, who were involved in remitting the bank drafts and also to find out whether such amounts were beyond their known sources of income, while their Coy were deployed under South Bengal Frontier. As per finding and opinion of the Staff Court of Inquiry, petitioner was blamed for remitting bank drafts amounting to Rs.3,13,000/- disproportionate to his known source of income and inquiry officer recommended strict disciplinary action. Thereafter, petitioner was heard by his Commandant underRule 45 of BSF Rules 1969 on charge under Section 46 of BSF Act read with section 13 (e) of Corruption Act. After hearing the charge, the Commandant ordered Record of Evidence against the petitioner u/s 46 ofBSF Act 1968 read with Section 13 (e) of Corruption Act-1988. Based on the evidence in the ROE, prima-facie case was established against petitioner. The petitioner was tried by Summary Security Force Court w.e.f.,10 September2011. The Court after considering the evidence on record found him guilty of remitting BD's amounting to Rs. 2.25 lakhs to his brother and awarded the aforesaid sentences.
15 SWP Nos. 687/12, 2456/11 & 2457/11
22. Heard learned counsel for the parties and perused the material on record as well as record of Summary Security Force Court produced by the respondents in respect of the petitioners.
23. Mrs. Surinder Kour, learned senior counsel appearing for the petitioner, has vehemently argued that the respondents have not conducted any proper inquiry as required under the provisions of BSF Act and the Rules and without affording an opportunity of being heard to the petitioners issued impugned Orders.
24. Learned senior counsel for the petitioners further submits that the under the provisions of Sub Section 2 of Section 74, the officer holding the Summery Security Force Court has no power to try the offences punishable under Sections 14, 17 and 46 of the BSF Act and in the instant matters, the charge against the petitioners is under Section 46 of the Act, as such, the respondent No.5 was not competent to convene the Summery Security Force Court.
25. In support of her contention, learned senior counsel for the petitioners has relied upon a judgment passed by a Coordinate Bench of this Court in SWP No.135/2005 titled Sumanta Dutta vs. Union of India and others, decided on 15.04.2024,to contend that in the said case similar issues as are involved in the present petitions have discussed and decided by observing that that the Summary Security Force Court was not competent and lacked jurisdiction to try 'civil offences' under Section 46 of the BSF Act 1968 except simple hurt or theft thereby the punishment of dismissal from service so imposed on the petitioner cannot be sustained in the eyes of law. In paras 16 to 20 it has been held as under:- 16 SWP Nos. 687/12, 2456/11 & 2457/11
"16.Under the scheme of the BSF Act, „civil offence‟ has been defined in terms of section 2(d) to mean an offence which is triable a „criminal Court‟. The "criminal Court‟ has also been defined under section 2(g) to mean a Court of ordinarily criminal justice in any part of India. Section 46 which deals with „civil offences‟ stipulates that subject to provisions of section 47 any person subject to BSF Act 1968 who commits any "civil offence" shall be deemed to be guilty of an offence against the said Act and if charged therewith under section 46 of the BSF Act 1968, shall be liable to be tried by a Security Force Court and on conviction be punishable as mentioned in sub-clauses (a) & (b) of the said Section. Section 47 specifically speaks about the "civil offence" not triable by a Security Force Court. Section 64 states about kinds of the Security Force Courts, namely, (a) General Security Force Court, (b) Petty Security Force Court and (c) Summary Security Force Court. Sections 65 and 66 deal with power who convene a General Security Force Court and Petty Security Force Court respectively, whereas Section 67 states about the contention of warrants issued under sections 65 and
66. Section 70 deals with Summary Security Force Court, whereas Section 80 deals with choice between criminal Court and the Security Force Court and stipulates that when the criminal court and the 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 a accused person shall be detained in force custody.
17. Under the scheme of the BSF Rules 1969 and in particular Rule 47 of these Rules speaks about charges not to be dealt with Summarily and stipulates that a charge for an offence under section 14 or Section 15 or clauses (a) & (b) or Section 16 or Section 17 or clause (a) of Section 18 or clause
(a) of Section 20 or clause (a) of Section 24 or Section 47 (other than that for simple or theft or a charge for abetment of an attempt to commit any of the offences shall not be dealt with summarily).
Therefore, an offence under Section 46 (within that of simple heart or theft) shall not be dealt with 17 SWP Nos. 687/12, 2456/11 & 2457/11 summarily as provided under Rule 47 meaning thereby that an offence under Section 354 RPC under which a charge was framed against the petitioner shall not be dealt with summarily under the provisions of Rule 47 of the BSF Rules 1969.
18. On a close reading of Rule 47, it clearly provides that accused can be tried summarily for the „civil offences" of simple heart and theft only, meaning thereby that except simple heart and theft, no other offence shall be dealt with summarily under Rule 47, as such, the offence under Section 354 RPC of which the petitioner had been charged was excluded from the purview of the meaning of Section 46 of „civil offence‟ and cannot be tried by a Summary Security Force Court as classified under Section 64 read with Section 70 of the BSF Act 1968.
19. The only question which falls for consideration of this Court to be decided in this petition is that, whether the petitioner who was guilty of committing „civil offence‟ under section 46 of the BSF Act 1968 punishable under section 354 RPC and consequentially whether Summary Security Force Court had got jurisdiction to try such offence is to be replied.
20. In view of the aforesaid facts and circumstances of the case, this Court is of the considered view for the aforesaid reasons that the Summary Security Force Court was not competent and lacked jurisdiction to try „civil offences‟ under Section 46 of the BSF Act 1968 except simple heart or theft thereby the punishment of dismissal from service so imposed on the petitioner cannot be sustained in the eyes of law."
26. Perusal of the record shows that there was no complaint made by any one that the petitioners have misappropriated any Government money or done anything or misused any property of the Unit or taken any bribe from any person by giving him false promises. The petitioners have been tried by the Summary Security Force Court and the punishment has been awarded, while the respondents have also not enquired or proved the 18 SWP Nos. 687/12, 2456/11 & 2457/11 fact that from where the money which is alleged to have been remitted by the petitioners through Bank Drafts has come to the petitioners.
27. For the foregoing reasons and the observations made by a Coordinate Bench of this Court in Sumanta Dutta's case (supra) which squarely cover the instant matters, this Court is of the considered view that the punishments awarded upon the petitioners vide impugned orders by the Summary Security Force Court are without jurisdiction and are nullity in the eye of law and accordingly, the impugned orders in all three writ petitions are hereby quashed alongwith all the proceedings. As a corollary thereof, the petitioners are entitled to be reinstated in service. The payment of back wages shall be subject to the fact, as to whether the respondents choose to prosecute the petitioners or not and in case, they do not prosecute them, the petitioners shall be entitled to full back wages from the date of dismissal till their reinstatement.
28. All the three writ petitions are disposed of in the aforesaid terms.
(VINOD CHATTERJI KOUL) JUDGE JAMMU 19.11.2024 BIR Whether the order is reportable: Yes/No