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4. We have heard the counsel for the petitioner.

5. The counsel for the petitioner has argued, that (i) the GSFC was constituted vide order dated 28th October, 2020 and assembled on 18th November, 2020; (ii) as per Section 80 of the ITBP Act, 1992, GSFC has to have minimum five members and as constituted, had five members; (iii) the trial of the petitioner before the GSFC commenced with effect from 2nd December, 2020; (iv) the petitioner was "arraigned" under Rule 73, on 30 th December, 2020; (v) the petitioner, before pleading to the charge, elected to submit statutory plea of jurisdiction under Rule 74 of the ITBP Rules, 1994, that GSFC had no jurisdiction to try the petitioner; (vi) the GSFC recorded evidence of the petitioner on the said plea of the petitioner and the prosecutor also adduced evidence in reply; (vii) thus, the trial continued post "arraignment" of the petitioner; (viii) on 11th February, 2021, GSFC found that one of its five members was disqualified from being a member of the GSFC; with such disqualification, GSFC fell short of the stipulated coram of five, under Section 80 of the ITBP Act; (ix) GSFC, on 11th February, 2021, wrote to the Convening Authority that one of the members of the GSFC suffered from disqualification to be a member of the GSFC and without him, the GSFC had fallen short of the coram stipulated in Section 80 of the ITBP Act; the GSFC thus, on 11st February, 2021 adjourned the proceedings sine die and referred the matter to the Convening Authority for passing appropriate orders; (x) the Convening Authority, vide impugned order dated 16th February, 2021, inter alia ordered:-

As this addendum to the convening order supra is hereby issued under my hand and seal. ";

and, (xi) the petitioner, being aggrieved from the aforesaid order, represented to the Director General, under Section 131 of the ITBP Act and who has vide impugned order dated 12th April, 2021, rejected the representation of the petitioner, reasoning as under:-

"3. Whereas, the accused vide his petition dated 10.03.2021 under section 131 (1) has raised an issue that under section 83 of the ITBP Act, no member can be added and thus present GFC trial should have been dissolved.

"(2) An officer shall not be added to a Court after accused has been arraigned.", and the impugned orders, adding an officer to the GSFC, are violative of the said Rule 116(2).

7. On enquiry, whether "arraigned" is defined in the ITBP Act or in the ITBP Rules, attention is invited to Rule 73 (as already reproduced in the order of the Director General set out hereinabove).

8. The question for consideration is, whether the impugned orders, substituting an earlier member of the GSFC who was discovered to be disqualified, with another, is violative of Rule 116(2) supra. The answer to the said question, in turn depends on the question, when can an ITBP personnel facing a GSFC, be said to have been "arraigned".

14. The admitted position is, that though the charge has been read out to the petitioner by the GSFC and he has been asked whether he pleads guilty or not guilty to the charge, the petitioner has not yet pleaded guilty or not guilty. The GSFC, when one of its members was discovered to be disqualified, was still at the stage of recording evidence on the objection of the petitioner to the jurisdiction of GSFC. Such disqualification, though not on an objection of the petitioner within the meaning of Rule 68(3), is nevertheless a disqualification within the meaning of Rule 68(8), and Rule 68(9) itself provides for substitution of the disqualified member by a member in waiting. Since in the present case there was no "waiting member in attendance" within the meaning of Rule 68(9), Rule 68(11) was followed and a report submitted to the Convening Authority. Rule 68(11) empowered the Convening Authority to appoint an officer as member to fill the vacancy or to convene a fresh Court to try the accused. The Convening Authority is thus found to have acted in accordance with Rule 68(11) and the Director General, ITBP is found to have rightly dismissed the petition of the petitioner under Section 131(2) of the ITBP Act.