G P SINGH Vs. SANTI RANJAN SARKAR

JUDGEMENT

(1.) THIS appeal has been preferred by the Commandant, 71 battalion, Border Security Force, Krishnagar and others including the Union of india against the judgment and order dated August 4, 1977 of a learned single judge of this Court, whereby the learned Judge made absolute the Rule Nisi issued on the application of the respondent, Shanti Ranjan Sarkar, under Article 226 of the Constitution of India.

(2.) THE respondent was a constable of 71 Battalion of the Border Security Force. At the material time, he was posted at Modhugari police Camp, P. S. Karimpur, District Madia. He was charged with abetment of the offence of exacting money from one Md. Mohiuddin mondal without proper authority. He was directed to be tried by the Summary Security Force Court. In the trial, he was found guilty of the charge and, by an order dated September 10, 1975 of the Summary Security Force Court, he was sentenced to undergo rigorous imprisonment in civil jail for a period of three months. He was also dismissed from service. The conviction and sentence of the Summary Security Force Court was approved by the inspector-General of Border Security Force, West Bengal by his order dated September 29, 1975. The respondent, being aggrieved by the finding and sentence of the Summary security Force Court, while serving out the sentence in the civil jail, submitted a petition to the Inspector-General of border Security Force, New. Delhi through the Superintendent of Krishna gar Jail against such finding and sentence. The petition was rejected by the Law officer, Grade I on the ground that it should have been submitted to the Commandant of the Unit in which the trial was held.

(3.) BEING aggrieved by the finding and sentence of the Summary Security Force court, the respondent filed a writ petition in this Court and obtained a Rule nisi out of which this present appeal arises. At the hearing of the Rule Nisi, it was contended on behalf of the respondent inter alia, that in view of section 50 of the Border Security Force act, 1963, hereinafter referred to as the act, the order for imprisonment in civil jail for a period of three months could not be combined with dismissal from service. The said contention was upheld by the learned Judge and, as stated already, the learned Judge quashed the impugned order, of conviction and sentence and the dismissal of the respondent front, service and made the Rule nisi absolute. Hence this appeal.