DEPUTY INSPECTOR GENERAL BSF Vs. STATE

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Code of Criminal Procedure') is directed against the order dated 21/03/1998 passed by the Additional Sessions Judge, Delhi, dismissing the revision petition of the petitioner against the order dated 13/07/1995, passed by the Court of Metropolitan Magistrate, dismissing application moved by the Commanding Officer under Section 80 of the Border Security Force Act 1968 (for short, 'BSF Act') read with BSF Courts (Adjustment of Jurisdiction) Rules, 1969 (hereinafter deferred to as the Rules') framed by Central Government under Section 475 Code of Criminal Procedure, for stay of proceedings against the accused Subhash Chander H.C. in case FIR No.31/93, under Sections 279/337 Indian Penal Code, P.S. Vinay Nagar and for transfer of same to them.

(2.) Prosecution allegations in brief are that on 14th January, 1993 at about 5:45 P.M. accused Subhash Chander while driving 8SF truck No.PCU 4842 rashly and negligently, hit motorcycle No.DHO 7447 being driven by one Roop Chand, as a result of which, he received injuries and was removed to the All India Institute of Medical Sciences for treatment. On receipt of the information, police reached the spot, recorded the statement of the injured and registered the case. During investigations motorcycle as well as BSF truck No.PCU 4842 were seized; after mechanical inspection it was given on superdari to Officer, incharge of the BSF. After arrest petitioner was released on bail by the police. One Inspector of the BSF 41 Bn. stood surety for him. After completion of investigations, police submitted the report under Section 173 Code of Criminal Procedure in the Court; cognizance was taken and summons for service on the accused were issued. Accused could be served only after issuance of bailable warrants against him. On 22/09/1994 accused appealed in the court and was admitted to bail. This time Bane Singh, HC No.7122-1015 (9) 41 Bn. BSF (Headquarters) stood surety for him. The matter was listed for notice on 7/11/1994; on that date the accused absented himself, therefore, his surety bond was forfeited, non-bailable warrants were issued against him and notice was issued to the surety under Section 446 Code of Criminal Procedure for 2/02/1995. On that date again none appeared and same process was repeated and Case wafs listed for 3/04/1995. On that date, the Commanding Officer of the 41 Bn. through Shri R.V. Sinha, Advocate moved an application (dated 10th March, 1995) under Section 80 of the BSF Act, inter alia, stating therein that accused Subhash Chander had been working with the BSF and posted under HQ 41 Bn. BSF, Dhubulia, Nadia, west Bengal and was subject to the provisions of the BSF Act and that he could be tried for the offences under the 8SF Act by the BSF Court. It was pleaded" trial, competent authority had decided on 16/02/1995 that the accused be, tried by the BSF Court; that the trial court had no jurisdiction over the matter; and it was required to transfer the proceedings to the BSP court for furthen action. Learned trial court rejected the application on 13/07/1995 observing that under Section 475 Code of Criminal Procedure in proper case the accused along with the statement of the of Fence, of which he is charged, is to be handed over to the Commanding Officer. The section contemplates that the accused along with the Commanding Officer must be in the Court, before the accused can be delivered As neither of them was present, the application for delivery of the accused for trial by the BSF Authorities was not maintainable. The petitioner preferred a revision petition against the order dated 13/07/1995 dismissing their application and the order dated 7/11/1994, issuing non-bailable Warrants and notice to the surety. Learned Additional cessions Judge by impugned order dated 21/03/1998, dismissed the revision petition holding that the accused has to be in the power and control of the Magistrate before he can be delivered to the BSF authority together With the statement of the offence of which he is charged. This order is under challenge. I have heard learned counsel for petitioner, learned APP for State and have been taken through the record.

(3.) Learned counsel for, the petitioner argued that Section 475 Code of Criminal Procedure is equivalent to Section 549 of the old Code that Rules 3 to 9 of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969 are equivalent to Rules 3 to 9 in Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 and that Sections 80 and 81 of the BSF Act are equivalent to Sections 125 and 126 of the Army Act, 1950. She argued that under Section 46 of the BSF Act, offences Under Sections 279/337 Indian Penal Code with which accused was charged are triable both by Criminal Courts as well as BSF Courts; that under the Rules BSF authorities have the first option to try the accused for such offences and that on receipt of the notice, BSF authorities exercised the option and decided to try the accused. In view of the same, the trial court had no jurisdiction to proceed With the trial. It was argued that the entire proceedings carried out by the trial court are null and void as mandatory notice under Rules 3 and 4 was not given by the trial court to the commandant of the unit. It was argued that if the trial court was of the opinion that the trial should proceed in that court, despite the option having been exercised by the BSF authorities, then under the Rules, it should have referred the matter to the Central Government for determination as to which Court should try the accused. Thus it was argued that the impugned order rejecbing the application of the petitioner under Section 80 of the BSF Act and requiring the Commanding Officer to produce the accused so that he can be delivered to the Commandant is illegal. Reliance was placed on The Superintendent and Remembrancer of Legal Affairs. West Bengal Vs. Usha Ranjan Roy Chowdhary AIR 1986 SC 1655 and GAjendra Singh Vs. State of Rajasthan and anr. decided on 25/04/1995 in S.B.Crl.R.No.337/94. Learned APP for State argued to the contrary.