DEPUTY INSPECTOR GENERAL Vs. GOVERNMENT OF WEST BENGAL

JUDGEMENT

(1.) Kanchan Chakraborty, J: This revision application is pertaining to Mathabhanga police station case No. 134 of 2004 vide G.R. No. 258 of 2004 pending in the Court of learned Additional Judicial Magistrate, Mathabhanga, Coochbehar. The applicant herein is the Deputy Inspector General, Sector Head Quarters, Border Security Force, Coochbehar, West Bengal. The petitioner has challenged the legality, validity and propriety of the order passed in Criminal Revision No. 21 of 2006 dated 18.12.2006 by the learned Additional Sessions Judge, Second Fast Track Court, Coochbehar whereby the revision application was allowed and the order passed by the learned Additional Chief Judicial Magistrate, was set aside. On 3.12.2004 at about 12 hours the B.D.O., Mathabhanga along with S.D.O., Mathabhanga and S.D.P.O., Mathabhanga in three vehicles had been to Mahishcharu to take over possession of four statues which were recovered by the local villagers during excavation. While returning with the recovered statues, two B.S.F. constables stopped their vehicles on the ground that they would not allow the vehicle to move till arrival of the in charge of the Border Security out post. The local villagers numbering about 400 also assembled on the spot at that time, manhandled the S.D.O. and his associates, burnt their vehicles and snatched away the recovered statues. Everything was done in presence of those two BSF constables. The case was reported to the local police station and on the basis of the said report, the Mathabhanga Police Station case No. 134 of 2004 was registered. The investigation ended in a chargesheet against as many as 25 persons including constable Subhas Chandar and constable Probin Biswas belonging to B.S.F. The Deputy Inspector General, Sector Head Quarters, B.S.F., Coochbehar had taken out an application on 3.3.2006 in the Court of learned ACJM, Mathabhanga praying for transfer of the case as far as constable accused Probin Biswas and Subash Chandar by invoking the provisions of the Boarder Security force Act. The learned ACJM, Coochbehar, however, allowed that prayer by an order dated 20.3.2006. The Government of West Bengal filed a revision application challenging the said order passed by the learned ACJM which was registered as Criminal revision No. 21 of 2006 and disposed of on 18.12.2006 by the learned Revisional Court who was pleased to set aside the order of learned ACJM on the ground that transferring the case of the BSF officials in view of BSF Act vis- -vis section 475 of Cr.PC was entirely discretion of the Magistrate and that since the BSF Jowans were found involved in an offence together with civilians, the learned ACJM should not have transferred the case of the BSF for adjudication by them in their Court. The DIG, Sector Head Quarters, BSF, Coochbehar has come up with this review application challenging the said order mainly on the grounds that the learned first Revisional Court was entirely wrong in interpreting the provisions of law in this regard.

(2.) The point to be decided is whether or not the order impugned legal, valid and sustainable in law?

(3.) Mr. Tushar Kanti Mukherjee, learned Counsel appearing on behalf of the petitioner contended that section 80 of the BSF Act, 1968 leaves no room of doubt that when an offence is committed by an Army Personnel, a member of BSF and the competent authority of BSF exercised its discretion under section 80 of the Act that the accused may be tried in the Border Security Force Court, the learned Additional Chief Judicial Magistrate, Cooch Behar made no mistake in allowing that prayer. Rather, the learned Fast Revisional Court failed to understand the spirit of relevant provisions of law and misinterpreted the law in this regard.