KALIPADA ACHARYA Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner, who was working as constable in the Border Security Force, has filed this writ application seeking following reliefs:-

(2.) Factual matrix of the case, in hand, is that the petitioner, by following due procedure of selection, was appointed and joined as constable in Border Security Force (BSF) on 02.04.1987 bearing no. 87655462 in 142 BN and posted to 'C' Coy. He was discharging his duty assigned to him and as such there was no adverse remark against him at any point of time. On 27.02.2001, while he was deputed for RP duty at BSF Gate No.2 of 142 BN HQ, Khemkaran, Punjab, he was charged for committing a civil offence under Section 46 of Border Security Force Act, 1968 (in short "BSF Act, 1968"), punishable under Section 354 IPC. On the same day, he was arrested and was under the charge of Guard Commander of Quarters Guards' vide order of Deputy Commandant. Charge sheet was filed against him on 01.03.2001 under Section 46 of BSF Act, 1968 in committing a civil offence alleging outraging the modesty of a woman.

(3.) Mr. Jayant Das, learned Senior Counsel appearing along with Mr. N. Sarkar, learned counsel for the petitioner contended that as per the provisions of the BSF Act, 1968 and Rules framed thereunder, Summary Security Force Court is not competent and lacks jurisdiction to try the civil offences under Section 46 of the BSF Act, 1968, except simple hurt and theft. Civil offences under Section 46 of the BSF Act are excluded from the jurisdiction of the Summary Security Force Court. Therefore, the Summary Security Force Court, having no power and jurisdiction to try any offence under Section 46 of the BSF Act, 1968 (other than simple hurt and theft), the punishment/sentences so imposed by it was ab-initio void, illegal, non est and not sustainable in the eye of law. It is further contended that opposite parties have not followed the prescribed procedure and not given adequate opportunity to the petitioner as provided under Rules 54, 63, 101, 151 and 157 of the Border Security Force Rules, 1969 (in short "the BSF Rules, 1969"). Therefore, the impugned sentence/punishment, being not in conformity with Sections 46 and 48 of the BSF Act, 1968 read with Rule 47 of the Rules, and the order of rejection made by the appellate authority, being a non-speaking one without assigning any reason, are to be quashed. It is further contended that the petitioner has been without any gainful employment and is living in penury and thereby, he raises preliminary objection regarding lack of jurisdiction of Summary Security Force Court relating to Section 354, IPC read with Section 46 of BSF Act, 1968 and Rule 47 of the BSF Rules, 1969 and claims for reinstatement in service with all consequential benefits.