UNION OF INDIA AND ORS. Vs. LAKHAN SINGH

JUDGEMENT

(1.) THE respondent, Lakhan Singh, was employed as a Constable with the Boarder Security Force on 8th April, 1988. He was posted at the headquarters at Siliguri as Border Mobile Patrol driver since 27th December, 1995. The allegation against him is that on 7th April, 1996, after consuming country liquor, he visited the house of Biru Rani Ray, in village Daikhata. He quarrelled with one Subal Chandra Ray, a worker in the rice mill owned by Biru Rani Ray, who he suspected was a Bangladeshi national. The respondent then left and returned to the BOP Daikhata, picked up his SLR along with a magazine of another Constable filled with 15 rounds and went to the house of Biru Rani Ray. After crossing the fence he fired two rounds from his SLR in the air to scare Subal Chandra Ray. The latter ran away to save himself, but Lakhan Singh fired at him again and one of the bullets pierced the left thigh of Subal Chandra Ray. P.R. Anand, Company Commander, lodged the first information report with the SHO Police Station, Jalpaiguri on 8th April, 1996 mentioning that the respondent was attacked by a Bangladeshi infiltrator, Subal Chandra Ray, who was injured in his left thigh by a bullet fired by the respondent in self -defence. Kotwali Police Station Case No. 131 of 1996 was initiated under sections 353/307 IPC against Subal. He was immediately removed to the hospital at Jalpaiguri by the Company commander.

(2.) AN FIR was also lodged by Biru Rani Ray with respect to this incident. Lakhan Singh was arrested by the Battalion Commandant and thereafter he was suspended from service on 16th April, 1996. The criminal case registered against him under Sections 447, 326, 307 and 506 of the IPC was transferred under Section 80 of the Border Security Force Act, 1968 for trial by the Security Force Court. The enquiry was held and the suspension order was revoked on 26th July, 1996. Lakhan Singh was tried summarily on the same day by the Commandant, 108 Battalion, Border Security Force and was awarded 28 days of rigorous imprisonment in force custody for committing following offences:

(3.) THE BSF and its officers have filed the present appeal. Mr. Pratik Dhar, the learned Counsel appearing for the appellants, submitted that the learned single Judge has transgressed the boundaries of judicial review which can be exercised by the High Court in its writ jurisdiction. He submitted that the learned Judge had erred in directing that Mr. Anand, the Company Commander, should be examined before a fresh order was passed. According to Mr. Dhar, even without testimony of Mr. Anand there was sufficient material on record to indict Lakhan Singh despite which the learned single Judge had unnecessarily reopened the entire matter. He pointed out that the FIR was lodged by P.K. Anand, Deputy Commandant, and not P.R. Anand. According to him, it was wrongly recorded that the FIR had been lodged by one P.R. Anand. Mr. Dhar submitted that the learned single Judge had reappreciated the evidence on record in the summary Security Force Court trial proceedings which was contrary to the well -settled principles of law.