SANDEEP MALIK Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner was posted on, Indo-Bangladesh Border. He was charged that he raped a Bangladeshi minor girl named Ms.Razia Khatoon. Thereafter, he was court- maratialled, found guilty and sentenced to undergo R.I. for 4 years and dismissal from service.

(2.) The petitioner was tried by General Security Force Court under Sec.47 of the Border Security Force Act read with Sec.376 IPC. The statutory petition before respondent no.2 / Director General of BSF was also rejected.

(3.) Mr.R.P.Sharma learned counsel for the petitioner has argued that no investigation and hearing of the charge as contemplated by BSF Rule 45 was done. In support of his contention Mr.Sharma has cited Lt.Col.Prithi Pal Singh Bedi v. Union of India AIR 1982 SC 1413 wherin it was held that Rule 45 was mandatory. The petitioner has challenged the procedure adopted by the Tribunal and assailed its findings about the identity, antecedents, credentials of minor girl, her mother and the doctor as all of them were foreign nationals not amenable to the jurisdiction of the Court Martial Court. On that score Mr.Sharma has argued that the evidence of such foreign nationals which was not recorded in conformity with the BSF Act and Rules and under the provisions of Sec.285 of the Code of Criminal Procedure (hereinafter referred to as the Code) cannot be taken into consideration for sustaining the conviction of the petitioner.