Calcutta High Court (Appellete Side)
Shri Sanjay Kumar vs Union Of India & Ors on 11 February, 2022
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
11.02.2022 IN THE HIGH COURT AT CALCUTTA
Sl. No.53 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
(Via Video-Conference)
WPA 2310 of 2022
Shri Sanjay Kumar
Vs.
Union of India & Ors.
Mr. Kishore Datta, Sr. Adv.,
Mr. Srijib Chakraborty,
Mr. Pankaj Agarwal,
Ms. Paramita Maity
....for the petitioner.
Mr. Rudra Jyoti Bhattacharjee,
Ms. Debjani Ghosal
....for the respondent nos.1 & 2.
The petitioner has challenged the order dated 4th February, 2022 issued by the Deputy Inspector General, Sector Head Quarter, Kolkata, Border Security Force fixing 14th February, 2022 to be date for commencement of trial under the General Security Force Court (in short "GSFC") as against the petitioner. The petitioner has also asked for stay of a memo dated 17th January, 2022 by which the petitioner was intimated about holding of the trial under GSFC. The petitioner says that with regard to an incident of cattle smuggling to Bangladesh through BOP - Sodepur 'A' Coy and BOP - Soladana 'D' Coy, both of 85 Bn BSF during the intervening night of 11th/12th April, 2019, there are two versions. On the basis of one version a criminal complaint was 2 made before the Basirhat Police Station, being Basirhat P. S. Case No.334 of 2019 dated 12th April, 2022 under Sections 323/325/326/352/353/ 186/189/429 of the Indian Penal Code and Section 11 of Prevention of Cruelty to animals Act, 1960. This complaint has ended in filing of a final report (in short FRT) on 30th April, 2019 before the Court of the learned A.C.J.M., Basirhat.
On the basis of the second version that the petitioner being in commandant of 85 Bn BSF had instructed his subordinates to allow smuggling of 220 cattle to Bangladesh, an investigation was conducted by the Staff Court of Enquiry. On the basis of such enquiry, the petitioner's case has been referred for conducting the record of evidence (in short ROE) by Arun Kumar, the Commandant and the Recording Officer. On the basis of the ROE, the petitioner's case has been referred for holding trial by GSFC, which is to commence on 14th February, 2022.
The petitioner has referred to Section 80 of the Border Security Force Act, 1968 (in short BSF Act) and has contended that when both the Criminal Court and Security Force Court have the jurisdiction in respect of an offence, it is for the Director General or the Inspector General or the Deputy Inspector General within whose command the accused is 3 serving to decide before which court the proceedings shall be instituted.
Admittedly, by making a police complaint before Basirhat Police Station, the petitioner says that the concerned officer had opted for proceedings against the petitioner before the criminal court. It is impermissible in law for the officer concerned after having opted to approach the criminal court to fall back and hold proceedings under Security Force Court. The petitioner then refers to Rules 42 and 51A of the Border Security Force Rules, 1969 (hereinafter referred to as the BSF Rules). By referring Rule 42 of the BSF Rules, the petitioner says that he has been charged of an offence along with a civilian, who is not subject to the BSF Act and whose identity is known. In view of such provision, the petitioner cannot be tried by GSFC. By referring to Rule 51A (iii) and (iv), the petitioner says that no decision is reflected from the order by which the petitioner's case was referred to a superior officer after recording of evidence. The competent authority has also not disclosed any reason for which it was decided to convene a GSFC for the trial of the petitioner.
The petitioner, therefor, prays for stay of the order dated 4th February, 2022 in aid of the final relief till disposal of the writ petition.
4
On behalf of the respondents, it is submitted that the offence for which the petitioner is charged with, relates to smuggling of cattle through international border, which is serious in nature. The petitioner, being the second man in commandant is accused of having instructed his subordinates for allowing smuggling of cattle through two different points of the Indo-Bangladesh border. The seriousness of charges will also appear from the evidence recorded by the Commandant and the Recording Officer. No interference, therefor, should be made at the trial by the GSFC. The respondents further say that the petitioner instead of invoking the writ jurisdiction should cooperate at the trial if he claims to be innocent. The respondents have relied upon a judgment reported in AIR 1998 SC 577 (Union of India v. A. Hussain). By referring to paragraph 22 of Major A. Hussain (supra), the respondents say that this is not a fit case where interference at the stage of commencement of the trial by GSFC is required to be made to stall the trial.
After hearing the parties and considering the materials on record, I find that certain specific allegations have been made as against the petitioner by his employer. The employer on stage wise basis as provided in the BSF Act and Rules has proceeded 5 against the petitioner. The Court loathe in interfering with a trial by GSFC unless patent illegality is demonstrated from the face of record for which Court need not wait any further. In the instant case, none of the grounds shown by the petitioner are such that interference to the trial by GSFC is to be made at this stage to stay even its commencement.
The matter requires to be heard after affording the respondents an opportunity to disclose their stand.
The interim order of stay of the trial by GSFC as prayed for by the petitioner is rejected at this stage.
The petitioner shall cooperate at the trial by GSFC which should be held strictly in accordance with law. The petitioner will be entitled to assistance of a defence counsel as permissible under the said Act and Rules. The petitioner shall be free to take all the points canvassed before this Court at the trial before GSFC. The result of the trial by GSFC as against the petitioner shall abide by the result of the writ petition.
This limited interim protection is granted to the petitioner as the final order may be passed on completion of trial before the writ petition reaches the stage of final hearing which will render the writ petition infructuous.
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Let affidavit-in-opposition be filed within eight weeks from date. Reply, if any, thereto be filed by three weeks thereafter.
Liberty to mention for inclusion in the list under the heading "Hearing" after twelve weeks.
(Arindam Mukherjee, J.)