Rajasthan High Court - Jaipur
Gajendra Singh vs State Of Rajasthan And Anr. on 25 April, 1995
Equivalent citations: 1995CRILJ3347, 1995(3)WLC635, 1995(2)WLN31
ORDER Rajendra Saxena, J.
1. This revision petition has been preferred against the order dated 23rd July, 1994, passed by the learned Sessions Judge, Jodhpur, whereby he allowed the application dated 23-5-1994 filed under Section 80 of the Border Security Force Act, 1968 (in short, 'the Act') by the D. I. G., B. S. F., Bikaner (non-petitioner No. 2) and directed that the accused-petitioner be handed over to the competent authority for being tried by the Security Force Court and discharged his bail bonds.
2. Stated in succinct the relevant facts are that the petitioner-Gajendra Singh C. T. No. 8600-80051 is posted in 06 Battery 1044, Border Security Arti Regiment, B. S. F., Bikaner. While he was absent without leave, on the FIR dated 18-2-1993 lodged by one Chandan Singh, a criminal case was registered against him at Police Station, Mandore Distt. Jodhpur. After investigation, the S. H. O. filed a challan against the petitioner for the offences under Sections 452, 307 and 323 IPC in the Court of learned Addl. Chief Judicial Magistrate No. 4, Jodhpur, who in turn committed the case by his order dated 9-5-1994 to the learned Sessions Judge, Jodhpur. It appears that on 16-5-1994, the D. I. G., B. S. F., Bikaner moved an application under Section 80 of the Act before the learned ACJM, but the said application was not decided by the latter on the ground since he had already committed the case to the Sessions Court, he was not seized of the matter. The D. I. G., B. S. F., Bikaner, therefore, submitted another application dated 23-5-1994 under Section 80 of the Act before the learned Sessions Judge, Jodhpur alleging that the competent authority has decided that the said case against the petitioner should be instituted before the Security Force Court and prayed that the accused-petitioner should be ordered to be given in the B. S. F. custody. The learned Sessions Judge, Jodhpur, by his impugned order, accepted the said application. Hence, this revision petitions.
3. I have heard Mr. Mahesh Bora, learned counsel for the petitioner and Sarva-Shri U. C. Bhargava and S. S. Lal, learned counsel for the non-petitioners and perused the available relevant record.
4. Mr. Bora has strenuously canvassed that the alleged offence was committed by the petitioner while he was absent from duty without leave, hence such an offence is not liable to be tried by Security Force Court, and that the learned ACJM had already taken cognizance against the petitioner for the said offences and even committed the case on 9-5-1994 to the Court of learned Sessions Judge and till then the competent authority under the Act did not exercise its discretion under Section 80 to decide that the case against the petitioner should be instituted before the Security Force Court, therefore, the provisions of Section 80 of the Act could not be pressed into service at such a late stage. Another limb of his argument is that the offences levelled against the petitioner arc not covered under Rule 41 of the Border Security Force Rules. 1969 (in short, 'the Rules, 1969'), but those fall within Rule 42 and, therefore, such a case should not be tried by the Security Force Court. He has asserted that the word 'may' used in Rule 42 cannot be interpreted as directory, but is mandatory and since the offences alleged to have been committed by the accused petitioner during absence without leave, he cannot be claimed for trail by the Security Force Court. His last contention is that the police arrested the petitioner from B. S. F. Camp. Bikaner, where he was under the close arrest and that on 30-4-1994 he was enlarged on bail under Section 439 Cr. P. C. by the learned Sessions Judge, Jodhpur. Hence by cancellation of his bail bonds, his valuable right as a citizen about his freedom during trial has been infringed because after the impugned order he has again been put under close arrest by the B. S. F. authorities. According to Shri Bora, the learned Sessions Judge has misinterpreted the provisions of Rule 42 of the Rules 1969 and Section 80 of the Act hence the impugned order be quashed and petitioner be ordered to be tried by the Criminal Court.
5. On the other hand, Sarva-Shri U.C. Bhargava and S. S. Lal have vehemently asserted that the application under Section 80 of the Act moved by the D. I. G., B. S. F., Bikaner was not at all belated. On the other hand, the learned ACJM completely ignoring the mandatory provisions of Rules 3 and 4 of the Criminal Courts and Security Force Courts (Adjustment of Jurisdiction) Rules, 1969 (in short, the Adjustment and Jurisdiction Rules') illegally committed the case to the Sessions Judge hurriedly and, therefore, simply by taking cognizance and committing case, it cannot be held that provisions of Section 80 of the Act cannot now be employed. They have relied on the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhary, . They have claimed that the offences committed by the petitioner fall within the meaning of Rule 41(1) (ii) of the Rules 1969 and that the provisions of Rule 42 do not prohibit or bar the trial of such a case against the petitioner by the Security Force Court. They have maintained that provisions of Rule 42 of Rules 1969 cannot over-ride the provisions of Section 80 of the Act and that since the petitioner is governed by the Act, he does not have a valuable or fundamental right to be tried by the Criminal Court and not by the Security Force Court.
6. I have given my anxious and thoughtful consideration to the rival submissions. For a proper appreciation of the controversy involved, a quick look at the statutory provisions and the position emerging there from is called for. It is beyond the pale of controversy that the petitioner is a person enrolled under the Act and under Section 3 subject to it.
7. Section 46 of the Act deals with Civil Offences. It lays down that subject to the provisions of Section 47, an person subject to B. S. F. 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 charged therewith under this section shall be liable to be tried by a Security Force Court and, on conviction, be punishable in the manner enumerated in the said section.
8. Section 47 relates to Civil Offences not triable by a Security Force Court. It proclaims that a person subject to the Act, who commits an offence of murder or of culpable homicide no 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; or at any place outside India; or at any place specified by the Central Government by notification in this behalf.
9. Hence, for the civil offences falling under Section 46 of the Act the Security Force Court has concurrent jurisdiction with the Criminal Court to try a person subject to the Act, while the offences falling under Section 47 against a person subject to the Act are exclusively triable by Criminal Courts and not triable by Security Force Courts.
10. Section 475 Cr. P. C. runs as under :-
"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, the Navy Act, 1957, and the Air Force Act, 1950, and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which person 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, 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 application for that purpose by the commanding officer of any unit of body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.
(3) A High Court, may if it think 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."
This section, therefore, enjoins upon a Magistrate when any, person is brought before him, in respect of such an offence triable by him or by a Court-martial, to have due regard to the rules framed by the Central Government in this behalf and to deliver accused in proper cases to the appropriate officers mentioned therein for being tried by a Court martial/Security Force Court.
11. It is needless to mention that Border Security Force is an armed force of the Union under Item 2 of List I of Schedule VII of the Constitution of India and the provisions of Section 475 Cr. P. C. are equally applicable to a person subject to B. S. F. Act.
12. The Central Government in exercise of the powers conferred by Clause (k) of Sub-section (2) of Section 141 of the Act has made the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules 1969 (in short 'Adjustment of Jurisdiction Rules'). Rule 2(iii) of the said Rules defines 'competent authority', which means the Director General, Inspector General, or a Deputy Inspector General of the Border Security Force.
13. Rule 3 deals with the trial of person subject to the Act. It proclaims that where a person subject to the Act is brought before a Magistrate and charged with an offence for which he is liable to be tried by a Border Security Force Court, such a Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless (a) he is of opinion, for reasons to be recorded in writing that he should so proceed without being moved thereto by the competent authority; or (b) he is moved thereto by such authority.
14. Rule 4 enjoins upon the Magistrate that before proceeding under Clause (a) of Rule 3, the Magistrate shall give written notice to the Commandant of the accused and until the expiry of a period of three weeks, in the case of notice given to a Commandant in command of a unit or detachment located in the State of Nagaland or Hill Districts of Assam etc. or ten days in case of a notice given to any other Commandant in command of a unit or detachment located elsewhere in India from the date of the service of such notice. This rule further enjoins that the Magistrate shall not convict or acquit the accused or make an order committing the accused for trial by the High Court or the Court of Sessions or transfer the case, for enquiry or trial under Section 192 Cr. P. C. (Emphasis added) Therefore, for proceeding under Clause (a) of Rule 3, giving of written notice by the Magistrate to the Commandant of the accused is sine qua non and pre-requisite.
15. Rule 5 details out the procedure on notice to the Magistrate. It provides that where within the period mentioned in Rule 4 if the Commandant of the accused or the competent authority gives notice to the Magistrate under Section 80 of the Act that in the opinion of such authority, the case should be tried by a Security Force Court, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him with the statement prescribed under Section 475 Cr. P. C. to the competent authority.
16. Rule 6 lays down that where a Magistrate has been moved by the competent authority under Clause (b) of Rule 3 and the Commandant of the accused or the competent authority, subsequently gives notice to such Magistrate under Section 80 of the Act in the opinion of such authority, the accused should be tried by a Border Security Force Court, then such Magistrate if he has not before receiving such notice, done any act or made any order referred to in Rule 4, shall stay proceedings, and if, the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed under Section 475 Cr. P. C. to the specified authority.
17. Rule 8 deals with the Reference to Central Government for determination of the Court for trial. It reads as under:-
"8. Reference to Central Government for determination of Court of trial: Notwithstanding anything contained in the foregoing rules, where it comes to the notice of a Magistrate, that a person subject to the Act has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through the Commandant or the competent authority, the Magistrate may, by a written notice, require the Commandant of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law, or to stay the proceedings against such person before the Border Security Force Court, if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted."
18. A bare perusal of the aforementioned Rules reveals that provisions thereof are mandatory. It is incumbent on the Magistrate to give written notice to the Commandant of the accused before proceeding under Clause (a) of Rule 3 and during the notice period he is prohibited from either convicting or acquitting the accused or framing in writing the charge against the accused or from making an order committing the case to the Sessions Court or the High Court or to transfer the case. In the instant case, admittedly the learned ACJM did not give any such notice under Rule 4 and without following the mandatory provisions of Rules 3 and 4 of the Adjustment of Jurisdiction Rules committed the case to the Court of Sessions. His order committing the case was, therefore, without jurisdiction and barred by law and the applications dated 16-5-1994 and 3-5-1994 under Section 80 of the Act were not at all belated. The procedure in Sections 80 and 81 of the Act and in the Adjustment of Jurisdiction Rules for resolving the conflict of jurisdiction is mandatory. The first option lies with the B. S. F. authorities to decide the forum of the trial and the Magistrate gets the jurisdiction only after the decision in his favour by the Central Government is made, in case of conflict between him and the B. S. F. authorities. In other words, the Magistrate cannot straightway assume jurisdiction without complying with the provisions of Rules 3 and 4 and giving an opportunity to the B. S. F. authorities of deciding the forum for trial of an accused subject to the Act. Where the Criminal Court and Security Force Court have concurrent jurisdiction in respect of an offence it shall be the discretion of the Competent Authority specified in Section 80 of the Act to decide before which Court the accused should be tried.
19. The D. I. G. B. S. F. who is the competent authority, submitted application dated 16-5-1994 under Section 80 of the Act to the Magistrate informing his discretion that the case against the petitioner shall be instituted before the Security Force Court and prayed for handing over the petitioner. However, that application was turned down by the learned ACJM on the ground that he had already committed the case to the Court of Sessions. The learned Sessions Judge, before whom the competent authority again moved an application dated 23-5-1994, after hearing the parties rightly held that the offences levelled against the petitioner did not fall under Section 47 of the Act and, as such, those were liable to be tried either by the Security Force Court or by the Criminal Court and that since the competent authority has exercised its discretion for trying the case against the petitioner before the Security Force Court, there was no option, but to hand over the petitioner to the B. S. F. authority, he accordingly allowed the said application.
20. Rule 41 of Rules 1969 provides for trial of cases either by Security Force Court or Criminal Court. It runs as under :-
"41. Trial of cases either by Security Force Court or Criminal Court: (I) 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 parson 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 whether 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 referrerd 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."
21. Rule 42 lays down that without prejudice to the provisions of Sub-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 where the offence is committed by him while on leave or during absence without leave.
22. The contention of Shri Mahesh Bora is that since the petitioner committed the offence while he was absent without leave, the competent authority was not authorised to decide that the accused be tried by the Security Force Court and to make a request under Section 80 of the Act. He urged that the provisions of Rule 42 are mandatory and the word 'may' used therein should be interpreted to mean 'shall'. For this he has relied on State of U. P. v. Babu Ram, , wherein it has been held that Rules made under a Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. There cannot be two opinions about this principle of interpretation of Statute and Rules made there under.
In the instant case, undisputably the offences for which the petitioner has been challenged are civil offences falling under Section 46 and he is liable to be tried by Criminal Court or by the Security Force Court. Thus, both the forums have concurrent jurisdiction. Such offences to not fall under Section 47 of the Act and exclusively triable by Criminal Court. Under Rule 41(1) (ii), an officer referred to in Section 80 of the Act has the authority to decide whether or not it would be necessary in the interest of discipline to claim for trial by a Security Force Court any person subject to the Act, who is alleged to have committed such an offence. The decision under Section 80 of the Act of the competent authority is paramount and no right has been conferred on the accused to claim his trial by the Criminal Court only for such an offence. The accused has not been given such an option.
In order to maintain discipline and for speedy trial, the Act and rules framed there under provide sufficient machinery which in itself is a self sufficient Code. If the petitioner is aggrieved by the decision taken under Section 80 of the Act, then he should seek his remedy by approaching the appropriate authorities in the Central Government under the Act.
23. Keeping in view the specific provisions of Section 80 of the Act and the Rules, the final choice about the forum of the trial of the person accused of. civil offence rests with the Central Government when there is a difference of opinion between the Criminal Court and the military authorities about the forum where an accused be tried for the particular offence committed by him. If the petitioner is aggrieved by the discretion used by the competent authority under Section 80 of the Act and claims that the offences levelled against him are not triable by the Security Force Court, then he should seek his remedy from the Central Government under the Act. Prima facie the offences levelled against the petitioner are triable both by the Criminal Court and the Security Force Court and in such a contingency, the discretion of the competent authority under Section 80 of the Act shall prevail. The application under Section 80 of the Act was not belated because the order of committal passed by the Magistrate without complying with provisions of Rule 4 of Adjustment of Jurisdiction Rules was without jurisdiction, void and non est.
24. In Supt. and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan, , the accused persons were Army Officers and they were charged for the offences in respect of which ordinary criminal Court and Court-martial both had concurrent discretion. The learned Special Judge, who was trying the case, had failed to follow the procedure framed by the Criminal Courts and Court martial (Adjustment of Jurisdiction) Rules, 1952 (which are in pari-materia and analogous to the provisions of the Criminal Courts and Security Force Courts (Adjustment of Jurisdiction) Rules, 1969). After trial, the learned Special Judge convicted one Army Officer and acquitted remaining two accused persons. The Apex Court while rejecting the appeal filed on behalf of the State of West Bengal and affiriming the judgment of the High Court held that the ordinary criminal Court would have no jurisdiction to take cognizance of the case and to try the accused, an Army man in a matter where the procedure prescribed by the rules has not been complied with and that the initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quahsed as a result thereof. In that case, the procedure prescribed under Rules 3 and 4 of the Rules, 1952 were not resorted. It was further held that simply because the army authorities had requested the police to investigate the matter and to report, it could not be presumed that the army authorities had voluntarily abandoned their option to try the accused in Court-martial. In view of this, contentions raised by Shri. Bora are misconceived and meritless and those are hereby repelled.
25. In my considered opinion, since the Magistrate's order committing the case was without jurisdiction as he had failed to comply with the provisions of Rules 3 and 4 of the Adjustment of Jurisdiction Rules, and the application filed by the competent authority dated 16-5-1994 was not belated. The competent authority again moved an application under Section 80 of the Act before the learned Sessions Judge, who allowed that application. It will not serve any purpose in asking the learned ACJM to decide the application of the competent authority dated 16-5-1994, because in my considered opinion, the learned Sessions Judge has not committed any illegality in allowing the subsequent application of the competent authority and handing over the accused petitioner to the B. S. F. authority. Prima facie the offences levelled against the petitioner fall within the ambit of Rule 41 of the Rules 1969 and the trial of such offences by the Security Force Court is not at all prohibited or barred by the provisions of Rule 42. To my mind, no valuable or fundamental right of the accused petitioner has been offended in handing over to the B. S. F. authority for his trial before the Security Force Court. Even if it is held that the word 'may' used in Rule 42 of the Rules, 1969 means 'shall' still then, the Criminal Court is not competent and authorised to decide as to whether the offences levelled against the petitioner should not be tried by the Security Force Court. If the Criminal Court is of the opinion that the proceeding should be initiated before itself in respect of any alleged offence, then it has to by written notice require the competent authority at his option, either to deliver over the offender to be proceeded against him according to law or to postpone proceedings pending reference to the Central Government. In the case on hand, no such contingency has arisen. On the other hand, the competent authority, after exercising its discretion, has submitted an application under Section 80 of the Act deciding that the case shall be tried before the Security Force Court. The impugned order, therefore, does not warrant any interference.
26. Hence, refracted' from any angle, this revision petition is devoid of any force and substance and the same is hereby dismissed.