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TMI Blog2015 (7) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of R.K. Birdi, constable Lakhwinder Kumar fired twice and one of the rounds hit Zahid Farooq Sheikh. Zahid died of the fire arm injury instantaneously. The aforesaid incident led to registration of FIR No. 4 of 2010 at Police Station, Nishat. It is relevant here to state that the Commandant of the Force by his letter dated 10.02.2010 handed over the investigation to the police. The case was investigated without any murmur by the local police and, during the course of investigation, both R.K.Birdi and Lakhwinder Kumar were arrested. On completion of investigation, the police submitted the charge-sheet on 05th of April, 2010 against both the accused for commission of offence under Section 302, 109 and 201 of the Ranbir Penal Code before the Chief Judicial Magistrate, Srinagar, whereupon an application was filed on behalf of the Force seeking time to exercise option for trial of the accused by Security Force Court. Accordingly, an application was filed by the Deputy Inspector General, Station Headquarters, Border Security Force, Srinagar before the Chief Judicial Magistrate, Srinagar on 6th of April, 2010 inter alia stating that the criminal case is pending against R.K. Birdi, Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleted" Aggrieved by the aforesaid order Ghulam Mohammad Sheikh and the State of Jammu & Kashmir filed separate revision applications before the High Court. Both the applications were heard together by the High Court and have been dismissed by the impugned order dated 21st of October, 2011. It is against this order the State of Jammu & Kashmir and Ghulam Mohammad Sheikh have preferred separate special leave petitions under Article 136 of the Constitution of India. Leave granted. We have heard Mr. Gaurav Pachnanda, Senior Advocate on behalf of the appellant, the State of Jammu & Kashmir and Ms. Kamini Jaiswal, Advocate for the appellant, Ghulam Mohammad Sheikh. We have also heard Mr. R.F. Nariman, learned Solicitor-General of India. Despite service of notice, Respondent Nos. 1 and 2 i.e., Lakhwinder Kumar & R.K. Birdi respectively have not chosen to appear. It may be mentioned here that Section 47 of the Act bars trial of a person subject to the Act by a Security Force Court who has committed an offence of murder or of culpable homicide not amounting to murder or rape in relation to a person not subject to the Act. However, this bar will not operate if the person subject t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erating at a picket or engaged on patrolling or other guard duty along the borders of India. According to the appellants, accused persons were not engaged in the duty of the nature specified above pursuant to any lawful command, therefore, they cannot be said to be on active duty so as to give jurisdiction to the Force to try them before Security Force Court. The learned Solicitor General does not join issue and accepts that accused persons were not performing duty of the nature mentioned in clauses (i) and (ii) of Section 2(1)(a) of the Act, but, according to him, in view of declaration of the Central Government, their act shall come within the inclusive definition of active duty. There is no connection, not even the remotest one, between their duty as members of the Force and the crime in question. The situs of the crime was neither under Force control nor the victim of crime was in any way connected with the Force. But, for the notification, these could have been sufficient to answer that accused persons were not on active duty at the time of commission of the crime. However, answer to this question would depend upon the effect of notification issued in exercise of the power un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty; or (b) at any place outside India; or (c) at any place specified by the Central Government by notification in this behalf." The aforesaid provision makes it clear that a member of the Force accused of an offence of murder or culpable homicide not amounting to murder or rape shall not be tried by a Security Force Court, unless the offence has been committed while on active duty. As we have found that the accused persons have committed the offence while on active duty within the extended meaning, the bar under Section 47 of the Act shall not stand in their way for trial by a Security Force Court. The bar of trial by a Security Force Court though is lifted, but it does not mean that the accused who had committed the offence of the nature indicated in Section 47 of the Act shall necessarily have to be tried by a Security Force Court. In a given case, there may not be a bar of trial by a Security Force Court, but still an accused can be tried by a Criminal Court. In other words, in such a situation, the choice of trial is between the Criminal Court and the Security Force Court. This situation is visualized under Section 80 of the Act, which reads as follows: "80.Choice between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not it would be necessary in the interests of discipline to claim for trial by a Court any person subject to the Act who is alleged to have committed such an offence. (2) In taking a decision to claim an offender for trial by a Court, an officer referred to in section 80 may take into account all or any of the following factors, namely:- (a) the offender is on active duty or has been warned for active duty and it is felt that he is trying to avoid such duty; (b) the offender is a young person undergoing training and the offence is not a serious one and the trial of the offender by a criminal court would materially affect his training. (c) the offender can, in view of the nature of the case, be dealt with summarily under the Act." Rule 2 (c) of the Rules defines Court to mean the Security Force Court. A bare reading of Rule 41(1) makes it evident that where the offence is committed in the course of the performance of duty as a member of the Force or where the offence is committed in relation to property belonging to the Government or the Force or a person subject to the Act or where the offence is committed against a person subject to the Act, the officer competent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present appeal, confers on the Central Government the power to make rules is of such a nature. It reads as follows: "141. Power to make rules.-(1) The Central Government may, by notification, make rules for the purpose of carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for,- (a) the constitution, governance, command and discipline of the Force; (b) the enrolment of persons to the Force and the recruitment of other members of the Force; (c) the conditions of service including deductions from pay and allowances of members of the Force; (d) the rank, precedence, powers of command and authority of the officers, subordinate officers, under- officers and other persons subject to this Act; (e) the removal, retirement, release or discharge from the service of persons subject to this Act; (f) the purposes and other matters required to be prescribed under section 13; (g) the convening, constitution, adjournment, dissolution and sittings of Security Force Courts, the procedure to be observed in trials by such courts, the persons by whom an accused may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1966 SC 1471, in which it has been held as follows: "..........Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and Section 15(2) specifies some of the matters enumerated by clauses (a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the powers conferred on the appropriate Government by sub-section (1) of Section 15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law........" (Underlining ours) The Privy Council applied this principle in the case of Emperor v. Sibnath Banerji, AIR 1945 PC 156, to uphold the validity of Rule 26 of the Defence of India Rules, which though was found in excess of the express power conferred under enumerated provision, but covered under general power. Relevant portion of the judgment reads as under: "Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the powers conferred on the Board, so that any cases not falling within the powers specified by Section 298(2) may well be protected by Section 298(1), provided, of course, the impugned bye-law can be justified by-reference to the requirements of Section 298(1). There can be no doubt that the impugned bye-laws in regard to the markets framed by Respondent No. 2 are for the furtherance of municipal administration under the Act, and so, would attract the provisions of Section 298(1). Therefore, we are satisfied that the High Court was right in coming to the conclusion that the impugned bye-laws are valid." In view of what we have observed above it is evident that 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 exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It has also been pointed out on behalf of the appellant that after lodging of the first information report, the Force voluntarily handed over the custody of accused Lakhwinder Kumar on 10th of February, 2010 and R.K. Birdi on 4th of March, 2010 and allowed the investigation to be conducted by the police without any objection and did not exercise option for trial by Security Force Court. Later on, such an option cannot be exercised, submits the learned counsel. In support of the submission, reliance has been placed on a decision of this Court in the case of Joginder Singh v. State of H.P., (1971) 3 SCC 86, and our attention has been drawn to Paragraph 29 of the judgment which reads as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Force has exercised his option for trial of the accused immediately on submission of the charge-sheet and before the commencement of the trial. Hence, the submission made has no substance and is rejected accordingly. In the facts and circumstances of the case, we give liberty to the Director General of the Force, if so advised, to re-visit the entire issue within eight weeks bearing in mind the observation aforesaid in accordance with law and if he comes to the conclusion that the trial deserves to be conducted by the Security Force Court, nothing will prevent him to make an appropriate application afresh before the Chief Judicial Magistrate. Needless to state that in case the Director General of the Force takes recourse to the aforesaid liberty and files application for the trial by the Security Force Court, the Chief Judicial Magistrate shall consider the same in accordance with law. It is made clear that observations made in these appeals are for the purpose of their disposal and shall have no bearing on trial. In the result, both the appeals are allowed, the impugned judgment and order of the Chief Judicial Magistrate dated 25th of November, 2010 and that of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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