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The petitioner, who is a Veterinary Surgeon and was serving as an Assistant Commandant in Indo Tibetan Border Police Force (for short 'ITBPF') has filed this petition to challenge the proceedings of a General Force Court ('GFC' for short) and the consequential punishment. Though initially the petitioner was sentenced to be removed from service by GFC but this sentence was commuted to loss of seniority for two years at the time of confirmation. This order was passed on a petition filed by the petitioner before confirmation of the finding and sentence which is termed as pre-confirmation petition.

The incident, which has led to this trial, took place at Basic Training Centre (BTC) Bhanu. The petitioner claimed that he had helped his colleague a senior officer holding the rank of Deputy Commandant Medical Officer, who was being forcefully taken to Mental Health Care Centre due to a vindictive attitude of respondent No.4 i.e. Inspector General ITBPF, Zonal Headquarter ITBPF, Dehradun (Uttaranchal). The petitioner would further aver that his colleague had pointed out some deficiencies in the health related issues concerning the new recruits, which offended respondent No.4. The petitioner allegedly came to his rescue, who was in the process of being dragged and thrown into ambulance. The petitioner had allegedly spoken to respondent No.2 to release of his colleague officer, but instead he was charge-sheeted. Thereafter, directions were issued for preparing a record of evidence. 

             This finding and sentence passed by the GFC            were

subject to confirmation in terms of       the provisions contained in

the ITBPF Act. The finding and sentence as recorded by the GFC were, accordingly, placed before the confirming authority i.e. Director General ITBPF. The confirming authority, confirmed the finding of guilty of charges 2nd and 3rd and also confirmed the finding on first charge with some variation in its particulars. The confirming authority remitted the sentence of removal from service awarded by GFC to forfeiture of two years service for the purpose of promotion. This remitted sentence was confirmed by the confirming authority. The petitioner has now filed this petition to challenge the finding and sentence as well as the order of confirming authority in confirming the finding and the final sentence is imposed.

Term `Commanding Officer' is defined as per Section 2(e) of the ITBPF Act, which is as under:-
2(e) "Commanding Officer", used in relation to a person subject to this Act, means an officer for the time being in command of the unit or any separate portion of the Force to which such person belongs or is attached;
As per the Scheme of the ITBPF Act and other cognate enactments, like Army Act, Air Force Act, Naval Act, BSF Act and CRPF Act, a Commanding Officer is a unique institution, which is responsible for carrying out investigation of any allegation of commission of an offence made against any person subject to the act and serving under his command. During the course of investigation, the Commanding Officer is bestowed with various powers either to take action or withdraw the charges or dismiss the charge in his discretion, if he is of the view that the same is either not proved or for any other such reasons further proceedings are not be called for. If on an allegation made before the Commanding Officer and upon enquiry or investigation conducted by him, the Commanding Officer is of the view that offence alleged is established, he may direct further action and in that event, he is the person responsible to charge the accused with the offence, serve him a charge sheet and proceed to take action to seek trial of such a person by an appropriate form of a Force Court. In respect of certain class of persons under the Act other than officer or subordinate officers he can even hold a trial by Summary Force Court. There may not be any parallel of this nature where the same person is held responsible for investigation/enquiry and then he is legally entitled to frame a charge against a person after holding such investigation and enquiry and thereafter to hold a trial also in respect of certain persons subject to the act. This institution of a Commanding Officer and the nature of powers and jurisdiction, which he exercises can certainly be termed as unique with no parallel, noticed under the Scheme of another enactment, which regulates the trial and procedure of an offence having criminal contours.