2015 (7) TMI 218 - SC - Indian Laws

Court for jurisdiction - Trial on security personnel - Trial to be done in Security Force Court or Criminal Court - Held that - Criminal Court and the Security Force Court each have jurisdiction for trial of the offence which the accused persons are alleged to have committed. In such a contingency Section 80 of the Act has conferred discretion on the Director General or the Inspector General or the Deputy Inspector General of the Force within whose Command the accused person is serving to decide before which court the proceeding shall be instituted. Section 141 of the Act confers power on the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. It is relevant here to state that the Central Government in exercise of the powers under Section 141 (1) and (2) of the Act has made the Border Security Force Rules 1969 hereinafter referred to as the Rules . Chapter VI of the Rules is in relation to choice of jurisdiction between Security Force Court and criminal court. Rules made to give effect to the provisions of the Act has to be consistent with it and if a rule goes beyond what the Act contemplates or is in conflict thereof the rule must yield to the Act. It is emphasized that Section 80 of the Act confers discretion on the Officer within whose Command the accused person is serving the choice between Criminal Court and Security Force Court without any rider whereas Rule 41 of the Rules specifies grounds for exercise of discretion. Accordingly it is submitted that this rule must yield to Section 80 of the Act. - One of the most common mode adopted by the legislature conferring rule making power is first to provide in general terms i.e. for carrying into effect the provisions of the Act and then to say that in particular and without prejudice to the generality of the foregoing power rules may provide for number of enumerated matters. Section 141 of the Act with which we are concerned in the present appeal confers on the Central Government the power to make rules is of such a nature. Rule 41 of the Rules has been made to give effect to the provisions of the Act. In our opinion it has not gone beyond what the Act has contemplated or is any way in conflict thereof. Hence this has to be treated as if the same is contained in the Act. Wide discretion has been given to the specified officer under Section 80 of the Act to make a choice between a Criminal Court and a Security Force Court but Rule 41 made for the purposes of carrying into effect the provision of the Act had laid down guidelines for exercise of that discretion. Thus in our opinion Rule 41 has neither gone beyond what the Act has contemplated nor it has supplanted it in any way and therefore the Commanding Officer has to bear in mind the guidelines laid for the exercise of discretion. The Commanding Officer thus has exercised his power under Section 80 of the Act and excepting to say that the said power has been exercised in his discretion there is not even a whisper as to why said discretion has been exercised for trial of the accused persons by a Security Force Court. The Commanding Officer has nowhere stated that the trial of the accused by Security Force Court is necessary in the interest of discipline of the Force. Once a statutory guideline has been issued for giving effect to the provisions of the Act in our opinion the exercise of discretion without adherence to those guidelines shall render the decision vulnerable. In our opinion the Commanding Officer has exercised his power ignorant of the restriction placed on him under the Rules. Having found that the Commanding Officer s decision is illegal the order passed by the learned Chief Judicial Magistrate as affirmed by the High Court based on that cannot be allowed to stand. - Decided in favour of appellant.

Summary

Issues Involved:
1. Jurisdiction of Security Force Court vs. Criminal Court
2. Definition and scope of "active duty" under the Border Security Force Act
3. Discretionary power under Section 80 of the BSF Act
4. Validity and application of Rule 41 of the BSF Rules
5. Procedural compliance and exercise of option for trial by Security Force Court

Issue-wise Detailed Analysis:

1. Jurisdiction of Security Force Court vs. Criminal Court:
The case pivots around whether the accused, members of the Border Security Force (BSF), should be tried by a Security Force Court or a Criminal Court for the alleged murder of a civilian. Section 47 of the BSF Act bars the trial of a person by a Security Force Court for murder unless committed while on "active duty." The Supreme Court examined whether the accused were on "active duty" at the time of the incident to determine the appropriate jurisdiction.

2. Definition and Scope of "Active Duty" under the BSF Act:
The term "active duty" is defined under Section 2(1)(a) of the BSF Act. It includes duties during operations against an enemy, patrolling, or guard duties along India's borders, and any period declared by the Central Government as "active duty." The Central Government had declared the duty of every BSF personnel in Jammu & Kashmir from July 1, 2007, to June 30, 2010, as "active duty." The Court concluded that the accused were on active duty at the time of the incident, as per the extended definition provided by the Central Government's notification.

3. Discretionary Power under Section 80 of the BSF Act:
Section 80 of the BSF Act grants discretion to certain officers to decide whether an accused should be tried by a Security Force Court or a Criminal Court. The Commanding Officer exercised this discretion and opted for a Security Force Court trial. However, the Supreme Court emphasized that this discretion must be exercised in accordance with statutory guidelines and not arbitrarily.

4. Validity and Application of Rule 41 of the BSF Rules:
Rule 41 of the BSF Rules provides guidelines for exercising discretion under Section 80 of the Act. It specifies conditions under which an officer may direct that an accused be tried by a Security Force Court, such as when the offense is committed during the performance of duty or in relation to government property. The Supreme Court found that the Commanding Officer's application lacked reasons for exercising discretion and did not adhere to the guidelines of Rule 41, rendering the decision vulnerable.

5. Procedural Compliance and Exercise of Option for Trial by Security Force Court:
The appellants argued that the BSF had voluntarily handed over the accused to the police and allowed the investigation to proceed without objection, implying a waiver of the option for a Security Force Court trial. The Supreme Court rejected this argument, noting that the BSF had filed an application for trial by Security Force Court immediately upon the submission of the charge-sheet and before the commencement of the trial. The Court distinguished this case from Joginder Singh v. State of H.P., where the military authorities had not exercised their option timely.

Conclusion:
The Supreme Court set aside the orders of the Chief Judicial Magistrate and the High Court, which had allowed the trial by the Security Force Court. The Court granted liberty to the Director General of the BSF to re-evaluate the decision within eight weeks, considering the statutory guidelines and observations made. If the Director General still opts for a Security Force Court trial, a fresh application can be made to the Chief Judicial Magistrate, who will consider it in accordance with the law.

Result:
Both appeals were allowed, and the Security Force Court was directed to transmit the records back to the Chief Judicial Magistrate, Srinagar, for further proceedings.