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Before the High Court the appellant had contended in view of the provisions of Section 52 read with Section 57 of the Border Security Force Act, 1968 (the BSF Act), the appellant cannot be prosecuted before the Special Judge because the appellant was already tried and awarded a minor punishment of severe displeasure under Section 53 of the BSF Act, therefore, there cannot be a second proceeding on the very same charge under the Prevention of Corruption Act by the CBI. The High Court noticing the fact that the award of DG's "Severe Displeasure" by the DIG BSF was only a recommendation and not actually an award of punishment under the BSF Act rejected the said contention advanced on behalf of the appellant. It also noticed the fact that what transpired before the BSF authorities was only a court of enquiry which was a preliminary fact finding step as per the BSF Act and before any steps could be taken for awarding any punishment to the appellant under the BSF Act, he was repatriated to his parent department. In the said factual background, the High Court held that Section 75 of the BSF Act cannot be attracted, consequently dismissed the petitions before it. Shri P.S.Mishra, learned senior counsel appearing for the appellant before us contended that the Special Judge, CBI, Patiala had no jurisdiction to try the case once initiated before the BSF authorities under the said Act. He contended that in view of Section 80 of the BSF Act, the Criminal Courts have no jurisdiction to try an offence allegedly committed by the appellant when he was serving in the BSF. He also contended that even the preliminary question as to whether Security Force Court had jurisdiction or not cannot be decided by a Criminal Court because that is a question which has to be decided by the court under the BSF Act only. His further contention is that in the instant case the BSF authorities have invoked their jurisdiction and after an inquiry wherein the witnesses were cross-examined on behalf of the appellant made a recommendation which was partially accepted by the IG who recommended awarding of Director General's "Severe Displeasure" thus the proceedings having been taken to a logical conclusion, the Criminal Courts have no jurisdiction to try the appellant on the very same charge which was once tried under the BSF Act.

This section describes the persons who are subject to the BSF Act. Sub-section (2) of this section makes it very clear that a person once subject to that Act shall remain so subject only until he retired, discharged, released, removed or dismissed from the Force in accordance with the provisions of this Act and the Rules. Thus it is to be noted here that as per this section once the appellant ceased to serve the BSF in accordance with the provisions of the Act and the Rules he ceases to be a person subject to that Act. In the instant case, the appellant was deployed to serve in the BSF while he was serving in the Indian Police Service and on his repatriation to his parent department, he ceases to be an officer with the BSF, therefore, by virtue of Sections 3(2) of the BSF Act, the appellant ceases to be a person subject to the BSF Act from such date of his repatriation.

Rules 53(2) to 106 which falls in Chapter 8 and 9 of the Rules provides for procedure to be followed when a competent officer decides to refer the charge for a trial under the BSF Act. In the instant case, it is a fact that no such procedure was initiated nor a trial as contemplated under the Act and Rules was even contemplated by the competent officer.

Bearing in mind the above provisions of the Act and the Rules applicable to the facts in this appeal, if we consider the argument of the learned counsel for the appellant, then we notice as on the date when Special Court, CBI took cognizance of the complaint against the appellant, he was not a person subject to the BSF Act and the competent authority under that Act had not initiated any trial against the appellant. What actually had happened was that on a complaint made by Assa Singh, a preliminary fact finding enquiry was initiated which body recommended further proceedings against the appellant, but the IG who received the report recommended the awarding of a minor punishment of severe reprimand. But the competent authority did not accept either of the recommendations but allowed the appellant to be repatriated to his parent department, consequently on the lapse of six months after his repatriation under Section 77(2) of the BSF Act, the BSF authorities ceased to have any disciplinary jurisdiction on the appellant since he ceased to be subject to the said Act. After that period, the appellant became subject to other laws of the land. Therefore, the Special Court, CBI had the jurisdiction to entertain a complaint against the appellant. The further argument of the appellant that because of Section 80 and 81 of the BSF Act it is only the Security Forces Court under the BSF Act that has the jurisdiction to try the appellant has also to be negatived. The next argument of the learned counsel for the appellant is that in fact the authorities under the BSF Act had already punished the appellant by recommending the recording of a severe displeasure of Director General, therefore, the CBI or for that matter the Special Court could not have entertained another complaint of Assa Singh on the same facts which would amount to a second trial. We have already noticed that the recommendation of IG for severe displeasure was never accepted by the competent authority, hence, there is no question of a second trial by the CBI Court. Herein, we may notice that the competent authority has also not accepted the recommendation of the SCOI for further proceedings, hence, entire proceedings against the appellant before the competent authority stood abandoned without being taken to any logical conclusion.

The learned counsel then argued in law initiation of preliminary fact finding enquiry itself amounts to a trial. Therefore, it should be held that when the appellant stood transferred to his parent department the proceedings under the BSF Act had already been initiated, therefore, it is only the BSF authorities who could conclude the said trial under Section 77 of the Act and the Special Court CBI could not have taken cognizance on a complaint of Assa Singh since the trial had already been started by the BSF authorities. This argument proceeds on the basis that a trial contemplated under the BSF Act had commenced on the complaint of Assa Singh by the initiation of a preliminary enquiry. Therefore, we will have to examine whether by starting a fact finding enquiry, does a trial commence under the provisions of the BSF Act. A perusal of the provisions of the Act and the Rules referred to hereinabove, in our opinion, makes it clear that initiation of a preliminary enquiry which is only to find out the existence of a case against the accused to initiate a trial would not amount to the commencement of a trial under the BSF Act. As a matter of fact, Rule 66 clearly indicates that commencement of a trial takes place when an order convening the court and the names of the officers appointed to try the accused is read in the hearing of the accused in accordance with Section 84 of the Act. The provisions of Chapter VII of the BSF Act read with Rules 52, 53 and 65 of the Rules clearly indicate that a trial under the Act could only start after the requirements of the said provisions of the Act and Rules are complied with. We have already noticed that the said requirements of the Act and Rules in the instant case have not been complied with nor for that matter the competent authority had taken a decision to initiate a trial. As a matter of fact, we are of the considered view the said competent authority had abandoned the proceedings against the appellant, therefore, we do not think the learned counsel for the appellant is correct in contending alternatively that a trial under the Act had actually commenced and was pending. As a matter of fact when exactly a trial under the BSF Act commences stands decided by the judgment of this Court in the case of Union of India & Ors. vs. Major General Madan Lal Yadav (Retd.) (1996 4 SCC 127). In the said case considering the similar provision as to the commencement of a trial in the Army Act, 1950, this Court held :