Document Fragment View

Matching Fragments

Thereafter, the petitioner was tried by SSFC on 08.02.1999 on charges under Section 16(d) of the Border Security Force Act, 1968 ( hereinafter for the sake of brevity referred to as, 'the BSF Act' ) for leaving the post without orders from superior officer and under Section 40 of the BSF Act for crossing over to Bangladesh without authority along with personal arms and ammunition and sentenced him to suffer rigorous imprisonment for 4 months and dismissal from service. Admittedly, the said trial proceedings were set aside by the competent authority holding the same to be illegal. Despite the same, another Record of Evidence (in short, 'ROE') proceeding was started against him in respect of the aforementioned charges purported to be under Section 16(d) and 40 of the BSF Act. Thus, the Commandant by SSFC once again tried the petitioner on 11.03.1999 on the self same charges.

H.S. Randhawa Coy Comdr.
A Coy Dt. 13/1/99."

COY LEVEL. FLAG MEETING. (.) COY LEVEL FLAG MEETING. HELD AT ABOUT 130825 TO 130845 HRS. AT BP NO. 1198/95 IN CONNECTION WITH INADVERTENT CROSSING OF TWO BSF PERSONNELS. OWN SIDE. SH-SWARN SINGH DY COMDT SUB. HS RANDHAWA AND 02 OR AND BD DIDE. COY COMDR TEKARGHAT SUB NOOR MOHD. AND 03 ORS ATTENDED (.) OWN SIDE ASKED THEM TO. RETURN. TWO BSF PERSONNELS ALONG WITH. ARM/AMN. TO BSF (.) THEY REPLIED THAT COMMANDANT LEVEL METING IS REQUIRED TO SHOT OUT THE MATTER (.) A FORMAL LATTER HAS BEEN HANDED TO BDR REP. HOLDING COMMANDANT LEVEL BORDER MEETING AT ABOUT 131200 HRS IST AT THE SAME PLACE (.) THEY PROMISE THAT THEY WILL RETURN. THE BSF PERSONNELS (.) MEETING ENDED AT CO-ORDIAL. ATMOSPHERE.

Rule 148 reads thus:-

"148. Verdict.- The Court shall after the evidence for prosecution and defense has been heard give its opinion as to whether the accused is guilty or not guilty of the charge or charges."

In terms of Rule 148, therefore, an opinion is required to be given. Such an opinion can be given only when reasons therefor are assigned. In Summary Security Force Court, an accused is deprived of benefit of the service of a Law Officer in terms of Section 83 of the BSF Act.

Section 70 of the BSF Act provides that a Summary Security Force Court may be held by a Commandant of a unit and he alone would constitute the Court. He may, therefore, discharge several functions. Duties to assign reasons in a case of this nature would be much more. It may be that Rule 148 of the BSF Rules may have to be read with Rule 149 of the BSF Rules, but while dealing with a situation of this nature where the liberty of a person is involved, in our opinion, Rule 148 thereof must be construed liberally. Forming an opinion although is a mental act, the same, when reduced in writing, should not be expressed in one word of 'Guilty' or 'Not Guilty'. In the Army Act and the Rules framed there under, i.e., the Army Rules, there is no provision like Rule 148 of the BSF Rules.

The petitioner, as noticed hereinbefore, was tried once and his trial was set aside by the DIG, BSF under Rule 161(1)(a) of the BSF Rules on the ground that Rule 45 of the BSF Rules had not been complied with.

49. The aforesaid Rules 45 and 161(1)(a) of the BSF Rules are to the following effect:-

"45. Hearing of the charge against an enrolled person. --(1) The charge shall be heard by the Commandant of the accused--
(a) The charge and statement of witnesses if recorded shall be read over to the accused if written statements of witnesses are not available, he shall hear as many witnesses as he may consider essential to enable him to determine the issue;