NIRMAL LAKRA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in this writ petition questions the legality of the Summary Security Force Court ( hereinafter for the sake of brevity referred to as, 'SSFC' ) wherein by reason of the impugned order he was not only dismissed from his services but was also sentenced to undergo 4 months rigorous imprisonment.

(2.) The basic fact of the matter is not in dispute. The petitioner joined Border Security Force ( hereinafter for the sake of brevity referred to as, 'BSF' ) as a Constable in the year 1980 and was promoted to the post of L/NK. In January, 1999 he was posted at BOP Lalghat at Indo- Bangladesh Boarder in 62 Bn BSF, where HC Mohinder Singh was the Post Commander. As the festival of Lohri fell on 13.01.1999 and certain items were required therefor, he was directed to accompany HC Mohinder Singh for patrolling to Barsora along the border on 12.01.1999 and to bring certain items for the troops on account of the said festival. However, allegedly while coming back from Barsora, he and HC Mohinder Singh noticed some Bangladeshi intruders carrying wood from India to Bangladesh and on being challenged by them, the intruders started running upon throwing away the same. Allegedly, as he and HC Mohinder Singh chased them, about 15-20 Bangladeshi nationals came out from hiding from behind. the bushes and overpowered them; tied them with ropes within the Indian territory; and took them to Bangladesh "BOP Tekkar Ghat after blindfolding them. Allegedly, they were kept in captivity at the Bangladesh BOP for the night and on 13.01.1999, they were handed over back to BSF authorities in a flag meeting attended by BSF Commandant, Shri B.K. Mehta by Bangladesh Rifles. Thereafter, the petitioner was tried by SSFC on 08.02.1999 on charges under Section 16(d) of the Border Security Force Act, 1968 ( hereinafter for the sake of brevity referred to as, 'the BSF Act' ) for leaving the post without orders from superior officer and under Section 40 of the BSF Act for crossing over to Bangladesh without authority along with personal arms and ammunition and sentenced him to suffer rigorous imprisonment for 4 months and dismissal from service. Admittedly, the said trial proceedings were set aside by the competent authority holding the same to be illegal. Despite the same, another Record of Evidence ( in short, 'ROE' ) proceeding was started against him in respect of the aforementioned charges purported to be under Section 16(d) and 40 of the BSF Act. Thus, the Commandant by SSFC once again tried the petitioner on 11.03.1999 on the self same charges. He was found 'Not Guilty' on the first charge while he was convicted on the second charge and awarded dismissal from service and was also sentenced to 4: months' rigorous imprisonment.

(3.) It was held by SSFC by a non-speaking order :-