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.

The learned counsel would further submit that the petitioner was tried by SSFC on the same charges on 06.02.1999 and awarded the punishment to suffer 4 months' rigorous imprisonment and the sentence commenced immediately on signing of the SSFC in terms of Section 120 of the BSF Act. Although the said trial was set aside for non-compliance of Rule 45, the learned counsel would contend, that the second trial was, therefore, barred under Article 20 of the Constitution of India as also Section 75 of the BSF Act. Reliance in this connection has been placed on Surinder Singh v. The Union of India & Ors., 1992 CRL. L.J. (M.P.) 1312 The learned counsel has drawn our attention to the fact that Sections 162 and 121 of the Army Act, 1950 are in pari material with Sections 115 and 75 of the BSF Act.

43. Let us now consider the provisions of the BSF Act. Chapter VIII of the BSF Act provides for the procedure of Security Force Courts. The Court may consist of several members, in which event, the majority of votes shall decide the fate of the accused, except in a case where sentence of death is to be awarded concurrence of at least two-third of the votes is required. The Presiding Officer has a vital role to play.

Section 87 of the BSF Act reads thus:-

"87. General rule as to evidence. -- The Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, apply to all proceedings before a Security Force Court."

(a) set aside the proceedings of the Court; or ... ... ... ... ..."

50. Section 75 of the BSF Act as also the Article 20 of the Constitution of India bars the second trial. The petitioner herein had suffered a part of the punishment as the punishment to suffer 4 months' rigorous imprisonment commenced immediately on signing of the SSFC in terms of Section 120 of the BSF Act.

51. Section 162 and 121 of the Army Act are in pari materia with Sections 15 and 75 of the BSF Act. In Surinder Singh's case (Supra), Dharmadhikari, J., as his Lordship then was, speaking for a Division Bench, held:-